BUCKLEY J.(reading the judgment)I have to decide whether a bequest contained in clause 9 (c) of the testator’s will is validated by the Charitable Trusts (Validation) Act, 1954. Having given his widow, who died on April 25, 1954, a life interest in his residuary estate, the testator bequeathed a number of reversionary pecuniary legacies to be paid on her death, and directed that the residue of his estate should be divided into three equal parts, with the bequests of two of which I have already dealt. Clause 9 (c) of the will is in the following terms: “The remaining one part to the board of directors of E. Wykes (Leicester) Limited to be used at their discretion as a benevolent or welfare fund or for welfare purposes for the sole benefit of the past, present and future employees of the company. I declare that my executors are empowered to accept the receipt of the then acting secretary in full discharge of the amount due.”
The value of the share of residue disposed of by this clause is of the order of £800. E. Wykes (Leicester) Ltd. (which I will call “the company”) carries on the business of elastic rubber thread coverers, and is said to be prosperous. It at present employs 150 persons, and there are some 50 former employees alive. In 1946, the company instituted a superannuation scheme for its employees, but a number of employees were excluded from it when the scheme was set up. Some fourteen of these persons are still alive.
The present directors of the company are the third and fifth defendants. The fifth defendant, as one of the persons entitled to share in any property as to which the testator died intestate, has an adverse personal interest, and, accordingly, the argument in support of the trust has been presented by Mr. Turner appearing for the third defendant.
Mr. Turner very properly concedes that the bequest contained in clause 9 (c) is void unless it is validated by the Act, as he contends that it is. The bequest, being one which, apart from the Act, is invalid but would be valid if the objects for which this fund is directed to be held or applied were exclusively charitable, is a disposition to which, by virtue of section 2 (1), the Act applies, if the bequest constitutes an “imperfect trust provision” as defined by section 1 (1) of the Act. If the bequest is such an “imperfect trust provision,” then, since it is contained in an instrument which took effect before December 16, 1952, the Act validates the trust by the operation of section 1(2).
Section 1 (1) of the Act defines an “imperfect trust provision” as follows: “In this Act, ‘imperfect trust provision’ means any provision declaring the objects for which property is to be held or applied, and so describing those objects that, consistently with the terms of the provision, the property could be used exclusively for charitable purposes, but could nevertheless be used for purposes which are not charitable.”
I have, therefore, to consider whether clause 9 (c) of the will so declares the objects for which this share of the testator’s residuary estate is to be held or applied that consistently therewith the property could be used exclusively for charitable purposes but could nevertheless be used for purposes which are not charitable. A trust for the benefit of employees of a particular company, unless it be for the relief of poverty, cannot be charitable in the eye of the law because such a trust lacks a sufficient element of public benefit (Oppenheim v. Tobacco Securities Trust Co. Ltd.1. On the other hand, a trust to relieve the poverty of employees of a particular company has been held to be charitable (Gibson v. South American Stores (Gath and Chaves) Ltd2. The class of persons to be benefited under clause 9 (c) of the will is confined to past, present and future employees of the company. Consequently, the only application of the fund or its income for the benefit of members of this class which would be legally charitable would be of a kind calculated to relieve the poverty of the beneficiaries. The relief of poverty would, I think, certainly be one, if not the sole or primary, object of a benevolent or welfare fund, and clearly comes within the term “welfare purposes”; and it seems to me that, if clause 9 (c) were valid, the directors of the company could, consistently with its terms, apply the whole of this share of residue for relieving poverty amongst employees or former employees of the company. In other words, they could have applied it all for charitable purposes, notwithstanding that they might consistently with the terms of the clause have used it all for purposes which are not charitable.
This would seem to demonstrate that this is an “imperfect trust provision” within the meaning of the Act. It is said, however, that it has been decided, in authorities binding upon me, that an “imperfect trust provision” must declare the objects of the trust in such a form as to include by express reference some legally charitable purpose as well as other non-charitable purposes. An example of objects so declared would be “charitable or benevolent objects.” If this be so, clause 9 (c) cannot be an “imperfect trust provision” within the meaning of the Act, for it is impossible to point to any purpose mentioned in this sub-clause which is of an exclusively charitable character. I must, therefore, consider the relevant cases.
In re Gillingham Bus Disaster Fund3 related to money contributed by the public after a tragic street accident in response to an appeal for a memorial fund “to be devoted, among other things, to defraying the funeral expenses, caring for the boys who may be disabled, and then to such worthy cause or causes in memory of the boys who lost their lives, as the Mayors may determine.” It was held that the words “among other things” did not confer a general discretion upon the trustees. The appeal contemplated three objects, and the word “then” indicated that it was only after the first two, namely, paying funeral expenses and caring for the disabled, had been satisfied that anything was to be applied to worthy causes. It was conceded that the first two objects lacked a sufficient element of public benefit to be charitable. Accordingly, if the whole trust had to be considered together it could not constitute an “imperfect trust provision” because the fund could not be used exclusively for charitable purposes. The argument presented on behalf of the Attorney-General was based upon section 2 (3) of the Act which, it was contended, required the court to apply the Act to the trust for worthy causes as though there were a separate disposition on trust for such worthy causes as the Mayors should determine of the surplus moneys not required for the first two purposes. Harman J. held that section 2 (3) was not applicable, and that, accordingly, there was no “imperfect trust provision.” In the course of his judgment, however, the judge, after stating, in effect, that the argument was that the Act should be applied to the trust for worthy causes as though there were a separate disposition for that purpose, and that this trust satisfied the terms of section 1 (1) because all the money applicable for worthy causes might be applied to charitable purposes, said4: “This is a very far-reaching submission. If it be right, a bequest ‘for such objects as my trustees think fit’ will be validated although nothing whatever about charity is mentioned in the will. The vaguer the words are, the better they will do. In my judgment, the Act was not intended to produce any such result. It was, as the long title shows, intended to cure dispositions whereby part of the trust fund is devoted to charitable purposes and part to purposes not charitable, or not wholly charitable, so long as the whole of the money could be devoted to charity by excluding words which were too wide or too vague.” That observation was not germane to the judge’s decision that section 2 (3) could not be called in aid in that case; nor was it, I think, an alternative ground of decision. It was, in my view, obiter dictum. Nevertheless, I should naturally wish to pay great attention to it. Before discussing it, however, I should mention the course the case took in the Court of Appeal.5 The Master of the Rolls, having reached the conclusion that section 2 (3) was not applicable, declined to express a view upon the construction of section 1 (1). He said6: “It is accordingly unnecessary for me to express a view of my own upon the second question, whether the phrase ‘to such worthy cause or causes,’ etc., is itself capable of constituting an imperfect trust provision. I feel, as did the judge, considerable difficulty that a formula so vague and wide as ‘for such purposes as the trustees think fit’ could have been within the contemplation of the Act merely because such a formula would on the face of it allow the exclusive selection of charitable purposes. But the phrase in the present case is ‘to such worthy cause or causes in memory of the boys who lost their lives ...’ and I feel also the force of Mr. Buckley’s argument that such a phrase has within it at least the notion of charitable objects or objects analogous thereto: and that the sense of the phrase would not be materially different if it had run: ‘to such charitable or other worthy causes,’ etc. In the circumstances, therefore, I prefer to express no view of my own upon this part of the Attorney-General’s case.” Romer L.J. also held that section 2 (3) was not applicable and concluded his judgment7: “it therefore becomes unnecessary to consider whether a gift for ‘worthy causes,’ in the context of the ‘Daily Telegraph’ letter, could properly be regarded as a disposition in favour of ‘an imperfect trust provision.’ The judge held that it could not and there appear to be powerful considerations which support his view. It may be that an ‘imperfect trust provision’ under section 1 (1) of the Act is confined to cases where, among the declared objects for which property is to be held or applied, one at least is charitable; and that, accordingly, whilst a gift to ‘charitable or benevolent’ objects would be within the Act, a gift to ‘philanthropic or benevolent’ objects would not. It is not necessary, however, to express any concluded opinion upon the point, and I refrain from doing so.” Ormerod L.J., on the other hand, held8 that section 2 (3) did apply. It was, therefore, necessary for him to consider whether the trust for “worthy causes” complied with section 1 (1). In his view the language of that subsection was unambiguous, and he could see no reason why the trust for “worthy causes” did not come within it, since the money applicable for that purpose, although it could be used exclusively for purposes which were not charitable, could be used exclusively for charitable purposes consistently with the terms of the trust. Both the Master of the Rolls9 and Romer L.J.10 referred to Harman J. having “held” that the trust for “worthy causes” could not constitute an “imperfect trust provision” within section 1 (1). If by this they intended to say (as I do not think they did) that this formed part of the ratio decidendi of the decision of Harman J., I would with the utmost deference differ from them in this respect, as I conceive that I am entitled to do.
I will return to consider In re Gillingham Bus Disaster Fund11 further after mentioning the more recent decision of Cross J. in In re Harpur’s Will Trusts12 The testatrix in that case directed her trustees, stating it shortly, to divide her residue between such institutions having for their main object the assistance and care of wounded and incapacitated members of the armed forces in such manner and proportion as they should determine. The judge held that not all such institutions would necessarily be charitable; some would and some would not. In his view, the gift was equivalent to a gift for distribution amongst charitable or benevolent institutions, and he declined to accept a submission that the case should be decided on the ground that this was not so. So construed, unless a distinction ought to be drawn for the relevant purposes between a gift for charitable or benevolent institutions and one for charitable or benevolent purposes, it is clear that the bequest constituted an “imperfect trust provision” whether the view of Harman J. of the construction of section 1 (1) was right or wrong, for the bequest as construed by Cross J. (except that it was a gift for institutions and not purposes) fell precisely within the narrower of the possible constructions of section 1 (1). Cross J. went on to hold that trusts for division amongst institutions, as opposed to trusts for the promotion of purposes, could not without violence to the language of section 1 (1) be brought within the Act. He accordingly held that the Act did not apply. Earlier in his judgment13 the judge referred to In re Gillingham Bus Disaster Fund14 and to the fact that in that case Harman J. had held that the Act applied only to a gift which was expressed to be for charitable purposes as well as for other non-charitable purposes. After referring shortly to the views expressed in the Court of Appeal in that case, Cross J. said 15 “In these circumstances, I must clearly treat the view of Harman J. on the point as binding on me.” For the reasons, however, which I have endeavoured to explain, the point did not arise for decision in In re Harpur’s Will Trusts,16 and it was, in my respectful opinion, irrelevant whether Cross J. considered the view of Harman J. as binding on him or not. In my view, Cross J. did not decide and, having regard to his interpretation of the bequest, could not have decided In re Harpur’s Will Trusts16 on this ground. If, however, what Cross J. said with regard to the Gillingham case17 was an alternative ground for his decision, then, as it seems to me, what he was in effect saying was that, if his construction of the will was mistaken, then, since he would feel himself bound by what Harman J. had said, he would decide against the Attorney-General on that ground. Cross J. himself, in my view, did not decide that the view of Harman J. of section 1 (1) was correct.
The matter, therefore, stands thus. In the Gillingham case18 Harman J. (as I understand him) said, obiter, that the Act should be construed as applying only to trusts framed in such terms that the objects referred to include some express reference to a charitable purpose but also include other non-charitable purposes (e.g., “for charitable or benevolent purposes”), and not as applying to purposes stated in a general way (e.g., “for public purposes”) which could embrace charitable purposes but contain no express reference to charity or any charitable purpose. In the Court of Appeal in the Gillingham case19 the majority decided the case on a ground which rendered this point irrelevant and, although they expressed some sympathy with the view of Harman J., abstained from expressing any opinion on the point, while the third and dissenting member of the court, to whose decision alone among the judgments I have mentioned the point was relevant, decided that section 1 (1) should not be construed in the restricted manner favoured by Harman J. but in accordance with its language, which he considered to be unambiguous.
In these circumstances, with deference to Cross J., I conceive I am at least free to adopt the view favoured by Ormerod L.J. if I think it preferable to the view favoured by Harman J.
It is well established that the language of a statute must primarily be construed according to its natural meaning. If the language is ambiguous the long title of the Act may be looked at to help resolve the ambiguity: it may not be looked at to modify the interpretation of plain language. The language of section 1 (1) of the Act is, in my judgment (as in the view of Ormerod L.J.), clear and unambiguous, and its operation cannot be in any way controlled by reference to the long title of the Act. Moreover, the long title does not, in my view, point the way in which Harman J. considered that it did. It refers to instruments “providing for property to be held or applied for objects partly but not exclusively charitable.” If it be conceded, as it must, that an expression such as “public purposes” embraces charitable as well as non-charitable purposes, that expression is, I consider, as aptly described by the language of the long title as the expression “charitable or other public purposes.”
It is not surprising that legal minds should be startled by the idea that Parliament may have intended the language of section 1 (1) to have as wide a potential operation as its terms suggest. It must, however, be borne in mind (1) that the Act only applies to trusts contained in instruments which took effect some 19 months before the Act became law (see section 1 (2)), so that any trust which was palpably invalid would be likely to have been recognised as such before the Act was passed; (2) that section 3 preserved the right of anyone who might be concerned to assert the invalidity of a trust to do so within the times limited by that section, so that except in the case of a trust which, having been assumed to be valid, had been in operation since December 16, 1946 (which would not have been the case where the trust was palpably invalid), the rights of those concerned to assail its validity were not abrogated by the Act although a time-limit was put upon seeking to enforce them; (3) that the Act has no application to any trust the invalidity of which had been recognised and acted upon before December 16, 1952. (See section 2 (2).) Notwithstanding the wide language of section 1 (1), therefore, the Act was only calculated to validate trusts which were not palpably invalid or in respect of which those interested to assert invalidity had slept upon their rights.
It is also not surprising that it should occur to legal minds that one at least of the kinds of trust which the legislature had in mind to validate was the “charitable or benevolent” kind. Although this trap for charitably minded but unwary or uninstructed testators was well known to the profession at least since the time of the decision in In re Macduff,20 and in fact from much earlier, the celebrated Diplock case,21 reported on appeal to the House of Lords under the name Chichester Diocesan Fund and Board of Finance (Incorp.) v. Simpson,22 made this aspect of charity law prominent in the minds of lawyers, and perhaps this may be particularly so of lawyers who were in practice in this branch of the law at and about the time of that decision. The same principle has been applied in somewhat more complicated circumstances in more recent cases, of which I may perhaps mention Oxford Group v. Inland Revenue Commissioners23 and Ellis v. Inland Revenue Commissioners.24 It does not follow, however, that this was the only form of defective quasi-charitable trust that the Act was intended to validate. From the year 1895, when Chitty J. decided In re Foveaux,25 until that case was overruled in Inland Revenue Commissioners v. National Anti-Vivisection Society,26 the suppression of vivisection was believed to be a charitable purpose, although in the latter case this was held not to be so. There may well be other trusts in operation as charitable trusts at the present time which are similarly vulnerable. Why should it be supposed that the legislature did not intend the Act to apply to such trusts if within the ambit of their objects some charitable purpose can be found? Indeed, the Committee on the Law and Practice relating to Charitable Trusts (Command Paper 8710 of 1952), whose recommendations in this respect, be it said, were not precisely followed by Parliament, suggested legislation in the case of trusts which had been in operation for six years or more on the footing that they were valid charitable trusts, which, as the committee recognised, would have had the effect of validating them even if such trusts should in fact have no charitable object at all (see paragraph 503 of the committee’s report). I mention this not, of course, for the purpose of construing the Act in the light of the report, but to demonstrate the danger of speculating about the intention of Parliament.
The intention of the legislature, like the intention of a testator, is primarily to be ascertained by reading the language employed, and it is not for this court to corset that intention, if it be clearly expressed, into some shape which accords better with the fashion of professional legal thought than the natural meaning of the language employed. More particularly, I think, this must be so when one is concerned with a definition section, where one must presume that Parliament would be specially precise and careful in its choice of language. The language of section 1 (1) is, in my view, clear and unambiguous. Construed in its natural sense it produces no absurdity or hardship. There appears to me to be no reason for thinking that so construed its effect exceeds what Parliament may reasonably be expected to have intended. I can discern no justification for declining to allow the language its full and natural effect. For these reasons, with respect to Harman L.J. (as he now is), I cannot agree with his view of the subsection as expressed in the Gillingham case,27 which I think puts an unjustifiable gloss upon the language of the statute.
I return, therefore, to the language of section 1 (1) of the Act and inquire whether the will of the testator (which in this case both effects the relevant disposition and is the instrument which in clause 9 (c) contains the “imperfect trust provision” if there be one) describes the objects for which this share of residue is to be held or applied in such a way that consistently therewith the property could be used exclusively for charitable purposes, notwithstanding that admittedly it could be used for purposes which are not charitable. If the answer is affirmative, clause 9 (c) by definition constitutes an “imperfect trust provision.” For the reasons indicated at the beginning of this judgment, I think the answer must be affirmative, with the consequence that, in my judgment, the Act applies in the present case.
I will accordingly declare that on the true construction of the will and of the Charitable Trusts (Validation) Act, 1954, the bequest contained in clause 9 (c) of the will was originally invalid but has been validated by the Act in the manner provided by section 1 (2) thereof.
I should add that Mr. Butterfield suggested that the evidence established that there could be no objects of a trust to relieve poverty amongst past, present and future employees of the company, but I feel myself unable to reach this conclusion on the evidence.
I might also add that, just as in the Gillingham case28 the Master of the Rolls discerned in the phrase “worthy causes” a notion of charity, so in the reference to a benevolent or welfare fund and to welfare purposes in the present case a notion or flavour of charity may be discerned. Members of the Bar are well acquainted with a charity in the name of which the word “benevolent” is prominent, and the Family Welfare Association is a very well-known charity which includes the word “welfare” in its name. I prefer, however, not to base my decision in any way upon this consideration, but upon the grounds which I have earlier elaborated.
Declaration accordingly.
Plaintiffs’ costs on the trustee basis and defendants’ costs on the common fund basis to be paid out of the residue of the testator’s estate.