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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> James & Anor v Allen & Ors  EWHC Ch J89 (30 June 1817)
Cite as: 36 ER 7, (1817) 3 Mer 17,  EWHC Ch J89
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(1817) 3 Mer 17; 36 ER 7
|JOSEPH JAMES, and HANNAH his WIFE
|WILLIAM ALLEN and OTHERS
and the ATTORNEY-GENERAL
Bequest in trust for such " benevolent " purposes, as the Trustees in their integrity and discretion may unanimously agree on; not to be supported as a charitable legacy; the word "benevolent" not being to be restricted to the sense of "charitable" so as to authorize the Court to say that the application of the property must be confined to such objects as are, strictly speaking, objects of charity. Therefore void for uncertainty, and distributable among the next of kin. Elijah Waring, by his Will, after devising to his Niece the Plaintiff Hannah James for her life certain farms and lands therein described, and after her decease to her four daughters in fee, and making certain specific bequests of personal property to the said Plaintiff, gave to his Executors (the Defendants W. Allen, and J. Allen, and W. Matthews deceased) £200 each, in consideration of their taking upon themselves the trusts of his will, and then proceeded as follows:
"Lastly, touching all my personal property whatsoever and wheresoever not before disposed of, subject to whatever expences may be incurred relative to the "execution and fulfilment of this my will, I give and bequeath the same to my friends the aforesaid William Allen, Joseph Allen, and William Matthews (whom I constitute and appoint the Executors of this my Will), and to their Executors and Administrators, in trust to be by them applied and disposed of for and to such benevolent purposes as they in their integrity and discretion may unanimously agree on."
The Plaintiffs, by their bill, prayed that the will might be established, except as to the residuary bequest, and that such residuary bequest might be declared void; charging that the disposition was void for uncertainty.
Sir S. Romilly, Trower, and Phillimore, for the Plaintiffs, contended that this case was the same in principle  with that of Morice v. The Bishop of Durham "(9 Ves. 399), and referred to Brown v. Yeall (7 Ves. 50, n.).
Hart and Spence, for the Defendants (the surviving Trustees and Executors), attempted to distinguish the cases. "Benevolence" is technically a word of charity; but, when coupled with another (as in Morice v. The Bishop of Durham with the word "liberality"), it loses its technical sense, and is to be judged of by its acceptation in common language. It was on this ground that His Honor decided in the case referred to. But, when the word stands alone, as in the present case, it is to be construed according to its technical meaning.
The Lord Chancellor, in the same case, observed that Brown v. Yeall did not apply; for that was for a particular purpose; here, if a valid devise at all, it is for general purposes.
Lovat, for the Representatives of the deceased Trustee.
Mitford, for the Attorney-General.
The Master of the Rolls. I certainly did not conceive, that, in the case of Morice v. The Bishop of Durham (9 Ves. 399) it was merely by the addition of the word "liberality" that the trust was rendered uncertain, and therefore incapable of being carried into execution. "Liberality" is, no doubt, distinguishable from "Benevolence," but Benevolence is also distinguishable from "Charity." For although many charitable institutions are very properly called "Benevolent," it is impossible to say, that every object of a man's benevolence is also an object of his charity. Nor do I see how the required concurrence of three persons in the selection of the objects does, by any necessity, exclude the appropriation of the property to purposes very different from any that are specified in the Statute of Queen Elizabeth (stat. 43 Eliz. c. 4), or that have been held to be within the analogies of that statute. In the case before referred to, it was attempted, in the argument on the appeal, to maintain that, although the bequest should be held to be void so far as it was made for purposes of "Liberality," yet it ought to be considered as good, in so far as it was for purposes of " Benevolence "; which last word, it was said, was equivalent to "Charity." The Lord Chancellor does not say, that there could not be a proportional division, where a bequest was in part only for a charitable purpose, as in the Attorney-General v. Doyley (4 Vin. 485; 2 Eq. Ab. 194; 7 Ves. 58, note), but holds generally, that no charitable purpose was sufficiently expressed. In that case, as in this, the whole property might, consistently with the words of the will, have been applied to purposes strictly charitable.
But the question is, what authority would this Court have to say that the property must not be applied to purposes however so benevolent, unless they also come within the technical denomination of charitable purposes? If it might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute. I see no substantial difference between this case and the former, and therefore consider the point as already decided, though if it were still open, I should not entertain any doubt on the question.