Attorney General v Royal Trust Company Ltd et Al

JurisdictionBahamas
JudgeZacca, J.A.,Da Costa, J.A.,Luckhoo, P.
Judgment Date26 October 1983
Neutral CitationBS 1983 CA 16
Docket NumberCivil Side No. 8 of 1982
CourtCourt of Appeal (Bahamas)
Date26 October 1983

Court of Appeal

Luckhoo, P.; Zacca, J.A.; DaCosta, J.A.

Civil Side No. 8 of 1982

Attorney General
and
Royal Trust Co. Ltd et al
Appearances:

Mr. Neville Smith for the appellant.

Mr. Orville Turnquest and Miss Caryl Turnquest for the first respondent

Mr. John Carson and Mr. Michael Barnett for the second respondent

Charity - Charitable trust — “Education and welfare of Bahamian children and young people within and without the colony” — Whether valid charitable trust established

Zacca, J.A.
1

This is an appeal against a part of a judgment of the learned Chief Justice whereby he held that a certain bequest (inserted by a third codicil to a will of a testator) was not a valid charitable bequest and was therefore void.

2

The question raised in these proceedings is whether a certain trust declared by the testator, Mr. Albert Edward Worswick for the education and welfare of Bahamian children and young people was a valid charitable trust.

3

The testator died on the 20th April, 1953 possessed of a considerable fortune. By his will which he made on the 30th April, 1951, he made several bequests and thereafter the remainder of the trust estate was to be distributed in the manner specified in Clause 15 of the will.

4

Clause 15(t) was originally in the following term:–

“The sum of thirty thousand pounds to be given by my trustees to an institution in England devoted to cancer research absolutely as they shall in their absolute discretion select, the said sum of thirty thousand pounds to be used by such institution for the purpose of cancer research.”

5

On the 13th September, 1951, the testator executed a first codicil to his will. A second codicil was executed on the 16th March, 1953. The testator made a third codicil on the 8th April, 1953. By that codicil he revoked the gifts contained in sub-clauses 15(s), (t), (v), (va), and (v) in favour of institutions in England, the United States of America and Canada for cancer research. He confirmed that sub-clauses (a) - (r) of Clause 15 of his will was originally executed were to remain unaltered, and that the following should constitute sub-clauses (s) and (t) of Clause 15:–

  • (s) The sum of Seventy Thousand Pounds to the Arthritic and rheumatism Foundation in the City of New York in the state of New York one of the United States of America for the purposes of the said Foundation.

  • (t) All the rest residue and remainder of my trust estate I direct my trustees to pay over to the Manager of the Nassau Branch of the Royal Bank of Canada for the time being the manager of the Nassau Branch of Barclays Bank (Dominion, Colonial and Overseas) for the time being and the said Stafford Lofthouse Sands upon trust to invest the same in any investments for the time being authorised by law for the investment of trust moneys or on mortgage of my real and personal estate situate within the Colony and in their absolute and uncontrolled discretion to use the income therefrom and any part of the capital thereof for any purpose for and/or connected with the education and welfare of Bahamian children and young people either within or without the colony and in all respects as they shall in their absolute discretion deem fit.”

6

An originating summons was taken out by the respondents, the Royal Trust Co., on the 15th July, 1970 seeking the determination of nine questions. Questions 3, 4, and 6 which are the relevant questions for the purposes of this appeal are now set out:–

  • (3) Whether the bequest in paragraphs (t) of Clause 15 (inserted by the third codicil to the will of the testator) is a valid charitable bequest or is void.

  • (4) If the bequest in the said paragraph (t) is void whether the residue of the testator's trust estate is held upon the trusts of paragraph (v) of Clause 15 of the will, or passes under Clause 16 of the will.

  • (6) If and so far as the bequests in paragraphs (j), (k) and (I) of Clause 15 and in Clause (t) thereof (as substituted by the third codicil) are valid charitable bequests that schemes may be established for each such valid bequest appointing Bahamas International Trust Company Limited or some other fit and proper persons to be trustees thereof and providing for the remuneration of such trustees or giving such other directions for the administration of the bequests as the court shall seem fit.”

7

Clause 16 of the will contained a bequest of the residue of the personal estate in favour of the wife.

8

After hearing arguments the learned Chief Justice answered 3 and 4 as follows:–

Question 3:
9

The bequest in paragraph (t) of Clause 15, (inserted by the third codicil to the will of the testator) is not a valid charitable bequest and is void.

Question 4:
10

The residue of the testator's trust estate comprising the corpus of the bequests in sub-paragraphs (I) and (t) of Clause 15 as inserted by the third codicil pass under Clause 16 of the will.

11

It is as a result of the answers to question 3 that the appellant now appeals. Sixteen grounds of appeal were filed on behalf of appellant. However, the court ruled that it would not entertain arguments on grounds 8 and 15. The arguments advanced by all parties before the Chief Justice was on the basis that the gift created a perpetual trust which would be void for infringing the rule against perpetuities unless it was charitable. At page 9 of his judgment the learned Chief Justice states:–

“it is common ground between the parties that the gifts in sub-clauses (h), (j) and (l) of Clause 15, and (t) of Clause 15 as substituted by the third codicil, create perpetual trusts which will be void for infringing the rule against perpetuities unless they are charitable.”

The following grounds of appeal were argued:–

  • (1) “The said part of the order is bad in law, the learned Chief Justice having misdirected himself on the proper law and thereafter erred in his interpretation of what the relevant principles are

  • (2) the learned Chief Justice erred in law in apprehending that the law of The Bahamas is the same as that of England in relation to the broad legal principles by which a court exercising equitable jurisdiction should be guided in determining whether particular purposes are charitable in the eye of the law

  • (3) the learned Chief Justice erred in law in finding that the gift in Clause 15(t) of the testator's will is not a valid charitable trust because it does not create an exclusively charitable trust

  • (4) the learned Chief Justice misdirected himself in finding that a trust for the education and welfare or purposes connected therewith of Bahamian children and young people is too vague to be enforced as such, and erred in applying the proper law

  • (5) the learned Chief Justice erred in law in holding that he was bound in this matter by the decision in the case of the Attorney General of New Zealand v. Brown and others, [1917] AC 393 and holding that that case was a precedent for concluding that the word ‘and’ may be changed to ‘or’ in this case

  • (6) the learned Chief Justice misdirected himself end thereafter erred in law in deciding that there was no controlling context whatsoever for the use by the testator of the word ‘welfare’ and thus accepting the wide meaning given that word in the Shorter Oxford Dictionary and using the case of Inland Revenue Commissioners v. Baddeley [1955] A.C. 572 found that welfare can be equated with ‘well-being’ going on to hold that the gift in Clause (t) of the testator's will is not a valid charitable bequest

  • (7) the learned Chief Justice erred in law in finding that ‘education and welfare’ in the testator's will must mean ‘education or welfare’

  • (9) the learned Chief Justice erred in law in finding that the case of In re Cole was a precedent, that he was bound by it in this matter, that it is part of the law of The Bahamas find that the majority decision in that case does not appear to be regarded in legal circles as having the restricted interpretation put upon it by counsel for the Attorney General when indeed the matter had not previously been canvassed n the legal circles in The Bahama Islands or The Bahamas and there is nothing in the laws of The Bahamas for the decision itself to show that even if it is part of the law of The Bahamas, it does not have the restrictions contended for by the appellant

  • (10) the learned Chief Justice misdirected himself in holding that trusts for the benefit and welfare of animals were charitable in the Bahama Islands because those trusts elevated the human race by stimulating humane and generous sentiments in mankind towards the lower animals.

  • (11) the learned Chief Justice erred in law in deciding that, although he was bound by the decision in the case of Verge v. Sommerville [1924] A.C. 496, because he was not in this matter dealing with a gift for the benefit of New South Wales returned soldier, without directing himself to the fact that he decided that he felt constrained to follow a case in which there was a gift for the general benefit of about thirty retractable and/or delinquent children in a home kept by an English County Council

  • (12) the learned Chief Justice misdirected himself in finding that the gift of the testator for the education and welfare of Bahamian children and young people was a gift in part for the welfare of a class of Bahamian children and young persons irrespective of whether they inhabit The Bahamas or any particular locality within The Bahamas or live outside The Bahamas

  • (13) the learned Chief Justice misdirected himself in finding that gifts of the class in the case of Goodman v. Saltash [1882] 7 A.C. 633 occupied an unique position in the law of charities and he erred in law in contenting himself to hold that whatever may be the difficulties of reconciling the said case with the more modern authorities (which authorities he did not judicially identify) he was not concerned with a gift that is specifically expressed...

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