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Cite as: [1955] UKHL 1, [1955] AC 572

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JISCBAILII_CASE_TRUSTS

    Die Jovis, 17° Februarii 1955

    Parliamentary Archives,
    HL/PO/JU/4/3/1024

    Viscount
    Simonds

    Lord
    Porter

    Lord Reid

    Lord
    Tucker

    Lord

    Somervell
    of Harrow

    HOUSE OF LORDS

    COMMISSIONERS OF INLAND REVENUE

    v.
    BADDELEY AND OTHERS (TRUSTEES OF THE NEWTOWN TRUST)

    COMMISSIONERS OF INLAND REVENUE

    v.

    baddeley and others (trustees of the newtown trust)

    (second appeal)

    17th February, 1955


    Viscount Simonds

    MY LORDS,

    These consolidated appeals raise once more a question, which has so
    often caused doubt and difficulty in the courts of this country, whether
    certain trusts are charitable in the sense which the law accords to that
    word. It need cause no surprise, though it may cause regret, that this
    should be so. For while no comprehensive definition of legal charity
    has been given either by the Legislature or in judicial utterance, there is
    no limit to the number and diversity of the ways in which man will seek
    to benefit his fellow-men. To determine whether the privileges, now con-
    siderable, which are accorded to charity in its legal sense, are to be granted
    or refused in a particular case, is often a matter of great nicety and I think
    that this House can perform no more useful function in this branch of the
    law than to discourage a further excess of refinement where already so many
    line distinctions have been made.

    In the present appeals the controversy is about the amount of stamp
    duty payable in respect of two deeds of conveyance, by which trusts were
    declared of certain property thereby respectively conveyed. If the trusts
    so declared were charitable the duty is smaller than if they were not
    charitable. The sums actually at stake are trifling, but the issue is an
    important one. It was decided in favour of the Appellants, the Com-
    missioners of Inland Revenue, by Mr. Justice Harman but against them
    by the Court of Appeal. Hence the present appeal.

    I find it convenient, my Lords, to examine the two deeds separately and
    take first a deed of conveyance to the Respondents as trustees of certain
    land at Stratford in the county of Essex of an area of about 680 square
    yards with a Mission Church, lecture room and store erected on some part
    thereof. So far as relevant (omitting certain words which admittedly were
    inserted in error) the trusts of this property were as follows:

    " The Trustees shall permit the said property to be appropriated
    " and used by the Leaders for the time being of the Stratford Newtown
    " Methodist Mission under the name of ' the Newtown Trust' (herein-
    " after called ' the Foundation ') for the promotion of the religious
    " social and physical well being of persons resident in the County
    " Boroughs of West Ham and Leyton in the County of Essex by the
    " provision of facilities for religious services and instruction and for
    " the social and physical training and recreation of such aforementioned
    " persons who for the time being are in the opinion of such Leaders
    " members or likely to become members of the Methodist Church and
    " of insufficient means otherwise to enjoy the advantages provided by
    " these presents . . . and by promoting and encouraging all forms of such
    " activities as are calculated to contribute to the health and well-being
    " of such persons Provided always that the Trustees shall not at any|

    2

    " time hereafter and so long as the trusts hereby declared shall not
    " have totally failed use or permit the said properly to be used either
    " for physical training or physical recreation or any kind of game on
    " Sundays Christmas Days or Good Fridays or for the sale or consump-
    " tion of intoxicating drink."

    This main trust is followed by certain ancillary provisions which cannot,
    I think, affect the question whether it is a charitable trust. It is at once
    apparent that the document is not skilfully drawn. It is presumably all
    the persons resident in the specified boroughs whose religious, social and
    physical well-being is to be promoted, but this is to be achieved by providing
    certain facilities for religious services and instruction and for the social
    and physical training and recreation of " such aforementioned persons",
    i.e., such residents, as are for the time being " in the opinion of such Leaders
    " members or likely to become members of the Methodist Church and of
    " insufficient means otherwise to enjoy the advantages provided by these
    " presents". This awkward phraseology leaves me in doubt whether the
    beneficiaries under this trust are to be all the residents in a certain area or
    only such of the residents as satisfy two conditions, first that they are
    Methodists or in the opinion of the Leaders potential Methodists, and
    secondly that they are of limited means. It might even he that upon a true
    interpretation of the deed some benefits are open to all the residents, others
    to a more limited class. Fortunately I do not find it necessary to determine
    this question, for I think that, whatever view may he taken of it this case is
    governed by the recent decision of this House in Williams' Trustees v. C.I.R.
    (
    [1947] AC 447).

    Before, however, I examine that case and certain other cases which must.
    I think, guide your Lordships' decision. I must first dispose of two conten-
    tions which were urged, the one by the Respondents and the other by the
    Attorney General, against the appeals.

    By the Respondents it was contended that the trusts of the deed could
    be supported as valid charitable trusts on the ground that they came within
    the first head of Lord Macnaghten's classification in Inland Revenue Com-
    missioners
    v. Pemsel
    [1891] AC 531. viz., that they were for the relief of
    poverty. This contention was, in my opinion, rightly rejected both by Mr.
    Justice Harman and the Court of Appeal. I do not question that there may
    be a good charity for the relief of persons who are not in grinding need or
    utter destitution: see In re de Carteret [1933] Ch. 103. But I agree with
    Mr. Justice Harman, and am content to adopt his words, that relief connotes
    need of some sort, either need for a home or for the means to provide for
    some necessity or quasi-necessity, and not merely an amusement however
    healthy.

    The Attorney-General, appearing as amicus curiae, urged that the validity
    of the trust could be sustained on the ground that, regarded as a whole, it
    was an educational charity. This contention had not previously been put
    forward and your Lordships have not the advantage of knowing the views
    upon it of the learned Judge and the Court of Appeal. The short answer
    appears to me to be that, regarded as a whole, the sum of the activities
    permissible under the deed can only be regarded as educational in the sort
    of loose sense in which all experience may be said to be educative, and that, if
    such activities are examined one by one, it would be impossible to regard
    many of them as in even the loosest sense educational.

    If then this trust is charitable, it can only be because it falls within the
    fourth class in Lord Macnaghten's classification ; that is, it must be a trust
    of general public utility and must be within the spirit and intendment of
    the preamble to the Statute 43 Elizabeth cap. 4. And this is what the
    Court of Appeal has held it to be.

    My Lords, with great respect to the singularly acute and refined argument
    of Lord Justice Jenkins, who delivered the leading judgment in the Court
    of Appeal. I must doubt whether anything is gained by discussing whether
    the trust should be regarded as prescribing three separate and distinct objects,
    namely (a) the promotion of religious well-being, (b) the promotion of social
    well-being, and (c) the promotion of physical well-being or as having as its

    3

    goal a state of complete well-being with three several aspects, religious,
    social and physical. Let it be assumed that, in the words of the learned
    Lord Justice, the object of the trust is the religious, social and physical
    improvement of the persons resident in the two boroughs: and let it be
    further assumed that this is the end desired for each of such persons, making
    such reservation as may be necessary for the fact that facilities for social
    and physical training are to be reserved for a limited class of those persons.
    Yet in the end the question is for what purposes may the trust property be
    used without trespassing beyond the language of the deed? I find that it
    may be used for promoting and encouraging all forms of such activities,
    i.e. the provision of facilities for (inter alia) social and physical training and
    recreation, " as are calculated to contribute to the health and well-being
    " of such persons ". My Lords, I do not think it would be possible to use
    language more comprehensive and more vague. I must dissent from the
    suggestion that a narrow meaning must be ascribed to the word " social ":
    on the contrary, I find in its use confirmation of the impression that the
    whole provision makes upon me. that its purpose is to establish what is
    well enough called a community centre in which social intercourse and
    discreet festivity may go hand in hand with religious observance and instruc-
    tion. No one will gainsay that this is a worthy object of benevolence, but
    it is another question whether it is a legal charity, and it appears to me
    that authority which is binding on your Lordships puts it beyond doubt that
    it is not. Here we are not concerned to consider whether a particular use
    to which the trust property may be put is a charitable use: that is a question
    upon which different minds might well come to different conclusions. On
    the contrary, we must ask whether the whole range of prescribed facilities
    or activities (call them what you will) is such as to permit uses which are not
    charitable : if it is, it is not such a trust as the Court can execute, and it
    must fail.

    My Lords, I repeat that in this admittedly difficult branch of the law
    nothing is to be gained by adding refinement to refinement, and I am satisfied
    that in the light of several decisions of this House, in which comparable
    general words have been held not to create a valid charitable trust, your
    Lordships would not be justified in taking a different view in the present
    case. From many cases I will take a few, selecting only those
    in which the generality of the words has been held to exclude
    an exclusively charitable connotation. In Farley v. Westminster
    Bank Ltd.
    [1939] AC 430, the gift was to the respective vicars
    and churchwardens of two named churches " for parish work ". Vague
    words indeed, but, if I had to write them out somewhat less vaguely, I could
    not easily find more appropriate words than those with which the trust of
    this deed begins and ends, adding perhaps something about the relief of
    the poor which at any rate would not detract from their charitable content.
    Yet this trust failed, because work (or activity) which conduces to the
    welfare of the parishioners (or which promotes their religious, social and
    physical well-being) is not confined to purposes legally charitable. So in
    an earlier case, Dunne v. Byrne [1912] AC 407, a gift to the Roman Catholic
    Archbishop of Brisbane to be used in the manner " most conducive to the
    " good of religion in this diocese " as he might decide, was held to be
    invalid, because, though it had a prima facie religious content, yet the
    generality of the language admitted an application which the law would
    not consider charitable. The words of Lord Macnaghten in delivering the
    judgment of the Board may be recalled : " The language of the bequest (to
    " use Lord Langdale's words) would be ' open to such latitude of construction
    " as to raise no trust which a Court of Equity could carry into execution '".
    These words are directly applicable to the present case. and. being applied,
    are fatal to the contention of the Respondents. I do not refer to Houston
    v. Burns [1918] A.C. 337 or other cases in which the same principle has been
    applied, and come to the recent case of Williams' Trustees. which I have
    already mentioned. There the House had to consider a deed by which a trust
    was established for the benefit of Welsh people in London. Its object
    was declared to be to establish and maintain an institute and meeting place
    in London for the benefit of Welsh people resident in or near or visiting

    4

    London with a view to creating a centre in London for promoting the moral,
    social, spiritual and educational welfare of Welsh people, and of fostering
    the study of the Welsh language, and so on. The means by which this was
    to be achieved were, without prejudice to the generality of the object, set
    out with some particularity. The noble and learned Lords who heard the
    case (including my noble and learned friend, Lord Porter) were unanimous
    in thinking that this was not a valid charitable trust. It is true that in the
    present case religious instruction is, but in Williams' Trustees was not, pre-
    scribed, but this distinction is irrelevant as it is conceded that the trust is not
    exclusively for religious purposes. But apart from this distinction, what
    valid ground is there for distinguishing the two cases? I ignore at this stage
    any difference in the class of beneficiaries: that raises another and more
    difficult question. I look only at the nature of the benefits which are within
    the scope of the two trusts, having regard in each case to the language of
    the exordium, and in this aspect I am unable to find any material distinction.
    I hope that I do no injustice to the judgments of the Court of Appeal in the
    present case if I say that they appear to give a special meaning to the word
    " social " where it occurs in the present deed and, having done so, to give
    too much significance to that meaning. It is to be observed that " social "
    is a word that occurs in the Williams' Trustees deed also, It is probably true
    that, as Lord Justice Jenkins says, much turns on the construction of the
    several deeds and it is perhaps because I have taken a different view of the
    meaning of a particular word that I have come to a different conclusion
    on the whole case. I am glad to think that in doing so I find myself in
    complete agreement with the Court of Appeal of Northern Ireland who in
    Londonderry Presbyterian Church House v. Commissioners of Inland
    Revenue
    27 Tax Cases 431 had to construe a deed which is essentially
    comparable with that which your Lordships are considering and held that
    the trust thereby established was not a valid charitable trust.

    Other aspects of the trust established by the first deed were discussed and
    it is right that I should make some observations upon them, but before
    doing so I will turn to the second deed, by which an area of land at Ilford
    in the county of Essex laid out as a playing field, upon parts of which
    a pavilion and groundsman's bungalow had been erected, was conveyed to
    trustees upon trusts which were substantially the same as those of the first
    deed except that (a) " moral " was substituted for " religious " in the opening
    words of the trust. (b) no reference was made to the provision of facilities
    for religious services and instruction, and (c) the benefits were unambiguously
    conferred exclusively upon residents who satisfied the conditions of member-
    ship or potential membership of the Methodist Church and insufficiency of
    means to which I have already referred. The second deed also contained
    certain ancillary provisions to which I need not refer and further, a declara-
    tion of trust of the sum of £10,000 which had been paid to them and of any
    other money or property which might be paid or transferred to them which
    the trustees were directed to use or apply in such manner (I quote) "as the
    " Trustees shall think most beneficial for promoting the objects of the charity
    " hereby constituted ".

    Once more I submit to your Lordships that this trust must fail by reason
    of its vagueness and generality. The moral social and physical well-being
    of the community or any part of it is a laudable object of benevolence and
    philanthropy, but its ambit is far too wide to include only purposes which
    the law regards as charitable. I need not repeat what I have said in regard
    to the promotion of religious, social and physical well-being, except to
    emphasise that to hold the one a valid and the other an invalid trust would
    be to introduce the sort of refinement which I deplore.

    In regard to this second trust I will only add that it does not follow that,
    because a trust in the vague and general terms of the second deed cannot
    be supported, therefore a gift by devise or conveyance of land for a recreation
    ground must also fail. This was the particular concern of the learned
    Attorney-General, and I think it right to say that, in my opinion, a gift of
    land for use as a recreation ground by the community at large or by the

    5

    inhabitants of a particular geographical area may well be supported as
    a valid charity. But I would reserve my opinion in a case in which the
    beneficiaries are a class determined, for instance, by adherence to a particular
    religion or by employment in a particular industry or by particular employers.

    This brings me to another aspect of the case, which was argued at great
    length and to me at least presents the most difficult of the many difficult
    problems in this branch of the law. Suppose that, contrary to the view that
    I have expressed, the trust would be a valid charitable trust, if the
    beneficiaries were the community at large or a section of the community
    defined by some geographical limits, is it the less a valid trust if it is confined
    to members or potential members of a particular Church within a limited
    geographical area?

    The starting point of the argument must be, that this charity (if it be a
    charity) falls within the fourth class in Lord Macnaghten's classification. It
    must therefore be a trust which is, to use the words of Sir Samuel Romilly
    in Morice v. Bishop of Durham, of " general public utility ", and the question
    is what these words mean. It is, indeed, an essential feature of all " charity "
    in the legal sense that there must be in it some element of public benefit,
    whether the purpose is educational, religious or eleemosynary: see the recent
    case of Oppenheim v. Tobacco Securities Trust Co. Ltd.
    [1951] AC 297;
    and, as I have said elsewhere, it is possible, particularly in view of the
    so-called " poor relations cases ", the scope of which may one day have
    to be considered, that a different degree of public benefit is requisite
    according to the class in which the charity is said to fall. But it is said
    that, if a charity falls within the fourth class, it must be for the benefit
    of the whole community or at least of all the inhabitants of a sufficient
    area. And it has been urged with much force that, if, as Lord Greene
    said in In re Strakosch [1949) Ch. 529), this fourth class is represented in the
    preamble to the Statute of Elizabeth by the repair of bridges, etc., and
    possibly by the maintenance of Houses of Correction, the class of
    beneficiaries or potential beneficiaries cannot be further narrowed down.
    Some confusion has arisen from the fact that a trust of general public
    utility, however general and however public, cannot be of equal utility to
    all and may be of immediate utility to few. A sea-wall, the prototype of
    this class in the preamble, is of remote, if any, utility to those who live
    in the heart of the Midlands. But there is no doubt that a trust for the
    maintenance of sea-walls generally or along a particular stretch of coast
    is a good charitable trust. Nor, as it appears to me, is the validity of a
    trust affected by the fact that by its very nature only a limited number of
    people are likely to avail themselves, or are perhaps even capable of availing
    themselves, of its benefits. It is easy, for instance, to imagine a charity
    which has for its object some form of child welfare, of which the immediate
    beneficiaries could only be persons of tender age. Yet this would satisfy
    any test of general public utility. It may be said that it would satisfy the
    test because the indirect benefit of such a charity would extend far beyond
    its direct beneficiaries, and that aspect of the matter has probably not been
    out of sight. Indirect benefit is certainly an aspect which must have
    influenced the decision of the " cruelty to animal " cases. But I doubt
    whether this sort of rationalisation helps to explain a branch of the law
    which has developed empirically and by analogy upon analogy.

    It is, however, in my opinion, particularly important in cases falling within
    the fourth category to keep firmly in mind the necessity of the element of
    general public utility, and I would not relax this rule. For here is a slippery
    slope. In the case under appeal the intended beneficiaries are a class within
    a class ; they are those of the inhabitants of a particular area who are
    members of a particular Church: the area is comparatively large and
    populous and the members may be numerous. But. if this trust is charitable
    for them, does it cease to be charitable as the area narrows down and the
    numbers diminish? Suppose the area is confined to a single street and the
    beneficiaries to those whose creed commands few adherents: or suppose
    the class is one that is determined not by religious belief but by membership

    30802 A3

    6

    of a particular profession or by pursuit of a particular trade. These were
    considerations which influenced the House in the recent case of Oppenheim.
    That was a case of an educational trust, but I think that they have even
    greater weight in the case of trusts which by their nominal classification
    depend for their validity upon general public utility.

    It is pertinent, then, to ask how far your Lordships might regard yourselves
    bound by authority to hold the trusts now under review valid charitable
    trusts, if the only question in issue was the sufficiency of the public element.
    I do not repeat what I said in the case of Williams' Trustees about Goodman
    v. Saltash
    7 A.C. 633 and the cases that closely followed it. Further considera-
    tion of them does not change the view that I then expressed, which in effect
    endorsed the opinion of the learned editor of the last edition of Tudor on
    Charities. More relevant is the case of Verge v. Somerville
    [1924] AC 496.
    In that case, in which the issue was as to the validity of a gift " to the trustees
    " ... of the Repatriation Fund or other similar fund for the benefit of New
    " South Wales returned soldiers". Lord Wrenbury delivering the judgment
    of the Judicial Committee said that, to be a charity, a trust must be " for the
    " benefit of the community or of an appreciably important class of the
    " community ". " The inhabitants " he said, " of a parish or town, or any
    " particular class of such inhabitants, may ... be the objects of such a gift, but
    " private individuals, or a fluctuating body of private individuals, cannot ".
    Here, my Lords, are two expressions " an appreciably important class of
    " the community " and " any particular class of such inhabitants ", to which
    in any case it is not easy to give a precise quantitative or qualitative meaning.
    But I think that in the consideration of them the difficulty has sometimes been
    increased by failing to observe the distinction, at which I hinted earlier in
    this Opinion, between a form of relief extended to the whole community
    yet by its very nature advantageous only to the few and a form of relief
    accorded to a selected few out of a larger number equally willing and able to
    take advantage of it. Of the former type repatriated New South Wales soldiers
    would serve as a clear example. To me it would not seem arguable that
    they did not form an adequate class of the community for the purpose of
    the particular charity that was being established. It was with this type of
    case that Lord Wrenbury was dealing, and his words are apt to deal with
    it. Somewhat, different considerations arise if the form, which the purporting
    charity takes, is something of general utility which is nevertheless made
    available not to the whole public but only to a selected body of the public-
    an important class of the public it may be. For example, a bridge which
    is available for all the public may undoubtedly be a charity and it is indifferent
    how many people use it. But confine its use to a selected number of persons
    however numerous and important: it is then clearly not a charity. It is
    not of general public utility: for it does not serve the public purpose which
    its nature qualifies it to serve.

    Bearing this distinction in mind, though I am well aware that in its applica-
    tion it may often be very difficult to draw the line between public and private
    purposes, I should in the present case conclude that a trust cannot qualify
    as a charity within the fourth class in Pemsel's case if the beneficiaries
    are a class of persons not only confined to a particular area but selected
    from within it by reference to a particular creed. The learned Master of the
    Rolls in his judgment cites a rhetorical question asked by Mr. Stamp in
    argument. " Who has ever heard of a bridge to be crossed only by impecu-
    " nious Methodists? " The reductio ad absurdum is sometimes a cogent form
    of argument, and this illustration serves to show the danger of conceding the
    quality of charity to a purpose which is not a public purpose. What is true
    of a bridge for Methodists is equally true of any other public purpose falling
    within the fourth class and of the adherents of any other creed.

    The passage that I have cited from Verge v. Somerville refers also (not,
    I think, for the first time) to " private individuals " or a " fluctuating body
    " of private individuals " in contradistinction to a class of the community
    or of the inhabitants of a locality. This is a difficult conception to grasp:
    the distinction between a class of the community and the private individuals

    7

    from time to time composing it is elusive. But, if it has any bearing on the
    present case. I would suppose that the beneficiaries, a body of persons
    arbitrarily chosen and impermanent, fall more easily into the latter than

    the former category.

    I conclude that on this ground also I should decide this case against the
    Respondents even if I were otherwise in their favour, and will only add that
    in coming to this conclusion I find myself in agreement with Lord Justice
    Babington in the Londonderry case to which I have already referred.

    I move that the appeals be allowed accordingly. The costs of all parties
    will be paid by the Appellants in accordance with the undertaking previously
    given.

    Lord Porter

    My lords,

    I concur with the Opinion of the noble Lord on the Woolsack in holding
    that the trusts declared in the two matters now under appeal are not
    charitable.

    Like Lord Tucker, however, I desire to express no opinion as to whether
    the beneficiaries constitute a sufficient class for the purposes of Class 4 of
    Pemsel's case
    .

    Lord Reid

    My lords,

    The first question to be determined is the proper interpretation of the
    trust purposes set out in the conveyances of the mission hall and lecture
    room and of the playing field. I shall take first the conveyance of the
    playing field. The phraseology is in this deed more concise and somewhat
    easier to follow. The essential part of it for the present purpose is as
    follows: " The Trustees shall permit the said property to be appropriated
    " and used by the Leaders for the time being of the Stratford Newtown
    " Methodist Mission under the name of ' The Newtown Trust"... for
    " the promotion of the moral social and physical well-being of persons
    " resident in the County Boroughs of West Ham and Leyton in the County
    " of Essex who for the time being are in the opinion of such Leaders
    " members or likely to become members of the Methodist Church and of
    " insufficient means otherwise to enjoy the advantages provided by these
    " presents by the provision of facilities for moral social and physical training
    " and recreation and by promoting and encouraging all forms of such
    " activities as are calculated to contribute to the health and well-being of
    " such persons."

    This begins by setting out the object to be attained. " the moral social
    " and physical well-being of persons resident in the County Boroughs of
    " West Ham and Leyton ". There follows a limitation to a section of those
    persons. I must return to this, but as this limitation throws no light on
    the nature of the trust purposes I need not deal with it now. Then there
    follows the method, and the only permissible method, by which the object
    is to be attained: first " by the provision of facilities for moral social
    " and physical training and recreation" and then " by promoting and
    " encouraging all forms of such activities " (which must mean the activities
    of moral, social and physical training and recreation) " as are calculated to
    " contribute to the health and well-being " of the beneficiaries. I think
    that " facilities " here means equipment and instruction or supervision suit-
    able for the activities mentioned and it is, I think, plain that the playing
    field can only be used for activities which are promoted or encouraged

    8

    by the Leaders. The real question is, what are the nature and scope of
    the activities which the Leaders are required or permitted to promote or
    encourage, and whether the conduct of any of those activities would go
    beyond what can properly be regarded as the fulfilment of a charitable
    purpose? The proviso, which I have not quoted, throws little independent
    light on this question, and it must, in my opinion, be determined by
    construing the words which I have quoted in light of the whole circumstances
    disclosed in the deed.

    The Leaders are, in my view, required to bear in mind that the donor's
    objective is threefold—to promote the moral and social and physical well-
    being of the beneficiaries: they must not pursue one of these purposes
    in isolation. Of course, some activities will contribute more to one and
    some more to another of these purposes, but they must not promote or
    encourage any activity which may be detrimental to any of these three
    purposes—indeed, they must prevent any such activity. They are expressly
    required only to promote or encourage activities which are calculated to
    contribute to health and well-being: it is not enough that a particular
    activity should not be harmful to health or well-being; it must only be
    promoted or encouraged if it is such as to contribute to health and well-
    being, and of course it would only be possible to conduct activities of a
    kind which the nature of the premises—a playing field—permits.

    My Lords, it is said that the words which I have quoted afford so
    vague a description of the permitted activities that a court could not
    determine what is authorised and what is not, or alternatively that these
    words are so wide as to authorise activities which could not come within
    anything that the law regards as charitable, so I must now consider what
    the law does regard as charitable. We were referred by the Attorney-
    General to a number of Acts of Parliament extending over nearly a century
    in which Parliament has regarded the provision of facilities for recreation
    for adults as a charitable purpose. The first was the Recreation Grounds
    Act, 1859, under which land conveyed for the "regulated recreation" of
    adults or for playgrounds for children was, I think, clearly regarded as land
    conveyed for a charitable purpose. It would appear that Parliament assumed
    that this was the law, but if Parliament was wrong in so assuming then
    it would be necessary, in order to give effect to the Act, that there should
    be implied an enactment that land conveyed in terms of the Act should he
    treated as land held for charitable purposes.

    The most important Act is the Mortmain and Charitable Uses Act, 1888.
    This Act. in my judgment, enacts that the dedication of any park, garden
    or other land to " the recreation of the public " is a charitable purpose and
    is within the meaning, purview and interpretation of the preamble to the
    Act 43 Eliz. c. 4. The drafting of the Act of 1888 is somewhat unusual,
    and it requires careful examination. Section 13 repeals the whole of the
    Act of Elizabeth, including the preamble, and then enacts : " (2) Whereas by
    " the preamble to the Act of the forty third year of Elizabeth, chapter four
    " (being one of the enactments hereby repealed), it is recited as follows":
    [then the preamble is set out in full]: " and whereas in divers enactments
    " and documents reference is made to charities within the meaning, purview,
    " and interpretation of the said Act: Be it therefore enacted that references
    " to such charities shall be construed as references to charities within the
    " meaning, purview, and interpretation of the said preamble ". Part II of
    the Act is headed " Charitable Uses" and begins by enacting in section 4
    that, subject to the savings and exceptions contained in the Act, every
    assurance of land to or for the benefit of any charitable uses shall be
    made in accordance with the requirements of the Act and unless so made
    shall be void. Then in Part III, headed " Exemptions ", section 6 enacts
    that Parts I and II of the Act shall not apply (subject to a limitation which
    is not material) to an assurance of land for the purposes only of (inter alia)
    a public park, and by the definition in section 6 (4) "' public park ' includes
    " any park, garden, or other land dedicated or to be dedicated to the recrea-
    " tion of the public." It is possible that before 1888 a conveyance of a park
    to trustees for the express purpose that it should be held and maintained In
    perpetuity for the recreation of the public might not have been held to be

    9

    a conveyance for a charitable purpose: the gift would benefit rich and
    poor alike, and that whether or not they are subject to any disability, and
    recreation must here include the use of the land by members of the public
    for mere relaxation and pleasure. But the whole of the provisions of the
    Act must be read together and, unless the ordinary principles of statutory
    construction are to be disregarded, the words taken from the preamble of
    the statute of Elizabeth and enacted in section 13 as the measure of charitable
    purpose must be construed in light of the earlier provisions of the Act
    which make the express purpose of holding " any park, garden, or other
    " land " for the recreation of the public a charitable purpose. I would
    agree that any " other land" must be ejusdem generis with parks and
    gardens. " Recreation " is a very wide term, but only certain types of recrea-
    tion can be pursued or enjoyed in a park or garden. It may be that as
    regards other types of land or buildings, where a greater variety of types
    of recreation could be pursued merely requiring that they should be held
    for the recreation of the public would not be a charitable purpose. But,
    in my judgment, the Act of 1888 clearly establishes that a gift for the
    purpose of public recreation of subjects on which the only possible types
    of recreation are those which could be enjoyed in the open air in a park
    or garden is a gift for a charitable purpose. And if that be so I cannot
    see how it could be denied that a gift of money to be used to promote
    or facilitate the enjoyment of public recreation on such land is also a
    gift for a charitable purpose. I therefore agree with the decision in In re
    Hadden
    [1932] 1 Ch. 133. It was followed in two unreported cases to
    which we were referred: in In re Foakes in 1933 Luxmoore J. held that a
    bequest of certain fields and a barn (together with a sum for their upkeep)
    for use as a recreation ground was a valid charitable gift, and in In re
    Chesters
    in 1934 Bennett J. held that a bequest of money to provide public
    recreation or playgrounds for the children was a valid charitable gift.

    In re Nottage [1895] 2 Ch. 649 is clearly distinguishable: money was
    bequeathed to provide annually a cup for yacht racing, so the only possible
    beneficiaries were yacht owners who would be somewhat strange objects
    of charity. But what the Appellants found on is the reasoning in the Court
    of Appeal to the effect that encouragement of a mere sport or game is
    not charitable though the sport or game may be beneficial to the public.
    No doubt that is true in the main, but it cannot apply to the provision
    or support of playing fields: yacht racing is far removed from the kind of
    recreation which Parliament has declared to be charitable. And a charitable
    purpose such as education may well be achieved in part at least by promoting
    sport or games. The emphasis is on mere sport or games, and I cannot
    suppose that any of the learned Judges had in mind the Acts of Parliament
    dealing with recreation or would have denied that the encouragement of
    games as a means to achieve a charitable purpose for those who took part
    in them was quite a different matter.

    As regards recreation the only other Act to which I need refer is the
    Open Spaces Act, 1906. Section 3 provides for land held by trustees on
    trust for the purposes of public recreation being transferred to a local
    authority and for the conditions of the trust being varied with the approval
    of the Charity Commissioners. And section 5 (1) provides that in certain
    circumstances the owner of an open space may convey his estate or interest
    in it to a local authority " in trust for the enjoyment of the public " and
    such a conveyance must be for a charitable purpose if it is to be valid.

    I am therefore of opinion that the purpose set out in the present deed
    for the provision of facilities for recreation and for its promotion and
    encouragement is a valid charitable purpose unless the class of beneficiaries
    is too narrow—a matter to which I shall return. I can find no distinction
    between a playing field and a park or garden for it is, I think, common
    knowledge that certain games are habitually played in public parks and
    the dedication to the recreation of the public authorised by the Act of 1888
    must, in my view, have permitted the playing of games such as are played
    on a playing field.

    But I think that the matter can be dealt with on broader lines. I would
    refer to the passage from Tyssen on Charitable Bequests at p. 5, quoted


    30802 A5

    10

    with approval by my noble and learned friend, Lord Simonds, in National
    Anti-Vivisection Society
    v. Inland Revenue
    [1948] AC 31 at p. 64: "One
    " by one, the question of the validity of such trusts was brought before
    " the Court of Chancery ... It considered only this. Having regard to
    " all legislative enactments and general legal principles is it or is it not
    " for the public benefit that property should be devoted for ever to fulfilling
    " the purpose named? If the Court considered that it was not for the public
    " benefit, it held the trust altogether void." It appears to me that the Court,
    in determining what is for the public benefit, must be guided by the
    views of Parliament as embodied in Acts of Parliament, and, unless any
    general legal principle prevents it, courts should recognise as charitable
    purposes not only the precise purposes mentioned in the statutes but others
    so closely resembling them that they cannot reasonably be distinguished.
    If that be right, then recreation on a playing field is, to my mind, not
    distinguishable from recreation in a public park. And if the promotion of
    recreation on a playing field is a charitable purpose, a fortiori I would think
    the promotion of moral, social and physical training there to be a charitable
    purpose.

    But as this latter purpose is said to be too vague I must examine it in
    more detail. The phrase " social and physical training " was not the inven-
    tion of the donor in this case. It occurs in section 86 of the Education Act,
    1921, which provides that: "For the purpose of supplementing and rein-
    " forcing the instruction and social and physical training provided by the
    " public system of education " an education authority may make arrangements
    to supply or maintain or aid the supply or maintenance of inter alia " other
    " facilities for social and physical training in the day or evening." This
    was extended by section 6 of the Physical Training and Recreation Act,
    1937, so as to permit this to be done for persons of whatever age, whether
    attending any educational institution or not. And in the Education Act,
    1944, it is provided by section 53 that it shall be the duty of every local
    education authority to secure that the facilities for primary secondary and
    further education provided for their area include adequate facilities for
    recreation and social and physical training, and " further education " includes
    (section 41 (b)) " leisure-time occupation, in such organised cultural training
    " and recreative activities as are suited to their requirements, for any persons
    " over compulsory school age who are able and willing to profit by the
    " facilities provided for that purpose "

    My Lords, with these examples of its use before him the donor in the
    present case might well suppose that the phrase " social and physical
    " training " has an ascertainable meaning, and, if it has, the addition of the
    word " moral " could not vitiate the gift. I do not say that because a phrase
    is habitually used in Acts of Parliament it necessarily follows that it must
    have a precise meaning, but I would not readily hold that it is beyond the
    capacity of a court to determine the meaning of such a phrase with sufficient
    precision to enable it to determine whether any particular case falls within
    or outside its scope.

    It is, of course, necessary that the trust purposes should be sufficiently
    precise to enable a court to determine, if a question should arise, whether
    a particular activity is authorised by them or not and "If the property, as
    " Sir William Grant said in James v. Allen 3 Mer. 17, ' might consistently
    "'' with the will be applied to other than strictly charitable purposes, the trust
    "' is too indefinite for the Court to execute'" (per Lord Macnaghten in
    Dunne v. Byrne
    [1912] AC 407 at p. 411). But the best way to show
    that the purposes are too vague is to find a hypothetical case where it
    could not be determined with reasonable certainty whether the case is
    within the purposes or not, and the best way to show that the purposes are
    too wide to be charitable is to find a hypothetical case which would be
    within the purposes but beyond the scope of charity. Nevertheless, Counsel
    for the Appellants refrained, no doubt for good reason, from submitting any
    such case; none was suggested in argument, and I can find none myself.
    It may be that the phrase " social training " apart from any context would be
    too vague, but in this context I see no great difficulty. The word " social "
    taken alone has acquired a variety of meanings, but to my mind " social

    11

    " training " in this context plainly means training calculated to make a person
    more fit to associate with his fellows in society or the community in a God-
    fearing, civilised and law abiding way, and that surely is one of the chief aims
    of all education. In In re Compton [1945] Ch. 123, the money bequeathed
    was " to be used to fit the children to be servants of God serving the
    Nation ". The bequest failed because the beneficiaries were only a fluctuating
    body of private individuals, but there was no suggestion that these words
    were too vague if the class of beneficiaries had been sufficient. Lord
    Greene, M.R., said : " The words are most apt to describe the ideals of such
    " an education as that for which Dr. Arnold stood, and which, at any rate
    " since his time, have always been regarded as the dominant purpose of a
    " public school education ". In my opinion, the words in the present case
    are no more vague than, and not essentially different from, those to which
    Lord Greene referred. It is true that in that case the words referred to
    pupils and in the present case they refer to persons of any age who can
    take advantage of a playing field. But education does not stop at any
    age. Recreation by itself may not be an educational purpose, but moral,
    social and physical training is. At least, I cannot think of any activity
    which would come within those words but would not be educational in
    character, and I adopt the words of Lord Greene, M.R. in In re Strakosch
    [1949] Ch. 529 at p. 539: " If the object and the means indicated are clearly
    " charitable then the Court is not astute to look for possible but subsidiary
    " non-charitable means which might be within the words used ". I note
    that in a recent case, In re Webber [1954] 1 W.L.R. 1500, Vaisey J. had no
    doubt that furthering the Boy Scouts Movement was an educational and
    therefore charitable purpose.

    In some contexts social training might mean training in those arts and
    graces which are sometimes supposed to facilitate admittance to certain
    more exclusive circles of society, but that is not the meaning here. On a
    playing field a person can learn the value of endurance and perseverance,
    of assiduous practice, of unselfish association in a team, and of winning
    with modesty and losing with a good grace, and, to my mind, that is the
    kind of moral and social training which the donor's words mean in this
    deed and in the Acts from which they were taken. I did not understand
    it to be argued that " physical training " was too vague a phrase, and if Par-
    liament has enacted that providing for recreation in a public park is charitable
    it would indeed be remarkable that the law should hold that provision for
    outdoor training is not a charitable purpose. With all respect to your
    Lordships who think otherwise, I cannot feel any substantial doubt that
    the purposes of this deed are charitable and are sufficiently clearly stated
    to be enforceable.

    But I find the case of the Mission Hall more difficult. The trust
    purposes here are almost identical with those for the playing field, the
    only material difference being the substitution of the word " religious"
    for " moral " and the insertion of an additional purpose for the provision
    of facilities for religious services and instruction, which is clearly charitable.
    But my doubt arises with regard to recreation. The possible forms of
    recreation in a hall are very different from those on a playing field, and
    it does not appear that Parliament has ever declared indoor recreation to
    be a charitable purpose. It is well settled that the provision of entertainment
    or amusement is not by itself a charitable purpose: but if the dominant
    purpose of the trust is charitable in character the fact that recreation is
    provided as an adjunct to that purpose does not destroy the charitable
    character of the trust. That appears to me to have been recognised in
    Inland Revenue Commissioners v. City of Glasgow Police Athletic Associa-
    tion
    [1953] AC 380, and I may also cite In re Mariette [1915] 2 Ch. 284,
    where providing fives courts for a school was held to be charitable.

    In the present case I have already pointed out that the Leaders must
    endeavour to promote the religious and social and physical well-being of
    the beneficiaries and only permit such activities as are calculated to con-
    tribute to their health and well-being, and the only reference to recreation
    is in the passage " by the provision of facilities for religious services and
    " instruction and for the social and physical training and recreation of"

    12

    the beneficiaries. It was argued that this case is indistinguishable from
    Williams' Trustees v. Commissioners of Inland Revenue
    [1947] AC 447. In
    that case the decision of the Commissioners was that " While certain features
    " of the institute conform to the idea of charity, we have come to the conclu-
    " sion that these features are not so dominating nor is the general character
    " of the institute, such as effectively to distinguish it from an ordinary social
    " club ". In his speech, with which the other noble and learned Lords con-
    curred, my noble and learned friend, Lord Simonds, set out the activities
    of the institute, which included maintaining a billiard room and tea and
    games rooms, badminton and table tennis clubs and promoting dances, whist
    and bridge drives, a weekly social and dance and an annual dinner and
    garden party: on the other hand there were lectures and debates, literary
    and educational classes and a library, and the office served as an information
    bureau for Welsh people. It is true that the first object of the institute
    was to create a centre in London for promoting the moral, social, spiritual
    and educational welfare of Welsh people and fostering the study of the
    Welsh language and of Welsh history, literature, music and art, but there
    followed provision for using the institute for providing a meeting place for
    Welsh people in London and their friends where they could obtain facilities
    for social intercourse, study, reading, rest, recreation and refreshment, and
    for meetings, concerts, lectures and other forms of instruction, discussion
    or entertainment. My noble and learned friend said after examining the
    authorities (at p. 458): " It is clear, as I have already said, that they" (the
    trustees) " have not applied the income for charitable purposes only, and I
    " do not doubt that they have applied them strictly in accordance with their
    " trust."

    My Lords, not only do I fully accept that decision, but I do not see
    how on the facts any other was possible. Recreation and entertainment
    were so prominent both in the objects and in the activities of the institute
    that I do not see how they could have been regarded as mere adjuncts of
    other and charitable purposes. But surely it must be a question of degree
    whether in any particular case this is so or not, and I find difficulty in
    reading the trust purposes in this case as permitting the Mission Hall to
    be used for anything at all resembling a social club. The hall is to be
    used primarily for religious services and instruction and social and physical
    training, which are, in my opinion, charitable purposes. It is open not only
    to Methodists but to persons likely to become members of the Methodist
    Church and attendance is of course voluntary. It may well be that
    some of the beneficiaries would not attend if the activities were severely
    limited to those which are strictly religious and educational. Any recrea-
    tion must, under the deed, be such as is calculated to contribute to the
    health and well-being of those who attend and must be sanctioned by the
    Leaders, and, in my view, recreation is only to be promoted or permitted
    in conjunction with and as ancillary to the other purposes, and therefore
    it is not such as to destroy the charitable nature of the trust. If I had
    thought that the hall could be freely used for mere recreation, entertainment
    or amusement by persons who take no part in the other activities I would
    have reached a different conclusion.

    On this part of the case the Appellants relied also on several other
    authorities and I must now deal with them. In Dunne v. Byrne [1912] A.C.
    407, a bequest to the Roman Catholic Archbishop of Brisbane to be used
    as he might judge most conducive to the good of religion was held not
    charitable. I think that this decision was inevitable because the whole
    of the money might well have been used for a non-charitable purpose,
    " In Cocks v. Manners, L.R. 12 Eq. 574, there is the well-known instance
    " of the dedication of a fund to a purpose which a devout Roman Catholic
    " would no doubt consider ' conducive to the good of religion' but which
    " is certainly not charitable" (per Lord Macnaghten at p. 410). But if
    I have rightly construed the deed of gift of the hall, this property could
    not be used for any non-charitable purpose because any purpose or use
    not strictly charitable in itself is purely ancillary to purposes which are
    charitable. In Farley v. Westminster Bank
    [1939] AC 430, the bequest was
    to the Vicar and Churchwardens " for parish work ". If these words had

    13

    not been added the bequest would have been charitable because the law
    would have implied that the money must be used in the performance of
    their spiritual duties for strictly religious purposes. But it was held as a
    matter of construction that the words " for parish work " were enlarging
    words. Lord Atkin (at p. 435) quoted with approval from the judgment of
    Lord Greene M.R. in the Court of Appeal " It appears to me that, taking
    " them as words of ordinary English, they cover any activity in the parish
    "... which trustees of that character may be expected to perform, whether
    " that work be strictly a religious purpose or strictly a charitable purpose,
    " or whether it be a work considered to be conducive to the good of
    " religion, or considered to be benevolent or generally useful to the in-
    " habitants of the parish or the congregation of the Church ". Once it
    had been decided that the words were enlarging words and had that
    meaning, it was clear that the whole of the money could have been devoted
    to non-charitable purposes, and again that appears to me to be quite different
    from the present case.

    Then the Appellants relied on the well known series of cases where
    expressions such as charitable or philanthropic, charitable or public and
    charitable or benevolent have been considered. In In re Macduff [1896] 2 Ch.
    451, the bequest was "for some one or more purposes, charitable, philan-
    " thropic or ". The blank was held to be immaterial, but the word
    " philanthropic " was held to be wider than charitable and vague and the
    bequest was held invalid. Lindley L.J. said (at p. 463) " We must get at
    " something sufficiently definite to guide the Court as to the kind of trust
    " which it has to execute, and that trust must be of the kind called
    " technically a charitable trust". And Lopes L.J. said (at p. 468) " Looking
    " at those words, I ask myself whether or not this property might not con-
    " sistently with the will, having regard to the word ' philanthropic '. be applied
    " to other than strictly charitable purposes, and I feel compelled to answer
    " that question in the affirmative. It has been said that nothing can be
    " suggested no purpose and no object can be suggested which would come
    " within the meaning of the word ' philanthropic ' which is not also a charity.
    " If that were so, I think the argument of the Attorney-General could be
    " maintained; but that is not a view that I am able to adopt. I think
    " I could suggest many objects which would come within the word
    " ' philanthropic ' and to which the trustees would be entitled to apply the
    " money, which are not charitable. I will not again allude to recreation
    " grounds and grounds devoted to sport which are not for the poorer classes,
    " but are generally for rich and poor alike. I think that would he a case ".
    And then he gives another illustration. The Appellants found on this
    reference to recreation grounds and it is certainly a dictum of some weight.
    It appears on p. 460 that Lopes L.J. in the course of the argument asked:
    " Would a gift for the establishment of cricket and recreation grounds be
    " charitable? " But the question does not seem to have been pursued and the
    statutes to which we have been referred were not brought to the notice of
    the Court. I wholly accept the rest of the quotation and particularly the
    method of approach which it sets out.

    Cases of bequests for charitable or public purposes are even further
    removed from the present case because it is clear that public purposes
    include purposes which are not charitable. I need not cite authority for
    the proposition that, if the object is predominantly political, the gift is not
    charitable, and I think that it would be generally agreed that in a democratic
    country political purposes are among the most important and perhaps the
    most important of all public purposes.

    I can at this point deal briefly with an argument for the Respondents
    that even if these trusts are not otherwise charitable they are for the relief
    of poverty and are charitable for that reason. I agree that poverty does
    not mean destitution, and that the relief of poverty can go a good deal
    further than supplying the bare necessaries of life, but it cannot extend to
    supplying everything that one would like people to have for their own good.
    It is true that under these deeds the benefits are only to be available to
    those " of insufficient means otherwise to enjoy the advantages provided ",
    but if the true meaning of the trust purposes is that something like social

    14

    and athletic clubs can be set up to provide mere sport, games, entertainment
    and amenities for those who do not wish to take part in the other activities,
    then I think that providing those advantages for those who could not other-
    wise afford them goes some way beyond the relief of poverty. There are
    many people well above the poverty line who cannot afford to pay for
    such advantages. But if I am right in my reading of the trust purposes
    and in my view of the law, then the element of poverty is not necessary
    to make them valid charitable purposes.

    But holding that the trust purposes are charitable does not mean that
    the Respondents necessarily succeed. Not only must the purposes be chari-
    table but the beneficiaries must be such a class as will bring in that public
    element which is essential. The beneficiaries here are the members of the
    Methodist Church who reside in two large county boroughs, and also
    residents there who, in the opinion of the Leaders, are likely to become
    members of that Church. I do not think that this latter extension of the
    class of beneficiaries improves the Respondents' case: if members of the
    Church are not a sufficient class the addition of an indeterminate number
    of individuals cannot remedy the defect. But, on the other hand, this
    extension of the class cannot, in my view, create any difficulty, it does not
    create any uncertainty about who the beneficiaries are. The donor has
    made the Leaders the judges of whether any particular person has the
    requisite qualification: no doubt the question which they have to determine
    depends largely on opinion, but the Leaders are in a position to form an
    opinion on the question. The selection of candidates or applicants frequently
    depends largely on opinion, but that has never, so far as I am aware, been
    put forward as a reason against the validity of a charitable bequest for
    assistance to individuals, and I see no reason why it should be an obstacle
    here. And if the members of the Methodist Church constitute a sufficient
    class it was not argued that the limitation to those members who reside in
    a particular large and populous area or to those members of insufficient
    means to provide the benefits for themselves would make the class insufficient.
    The argument was boldly advanced that, even if the purposes of these
    trusts were charitable so that they would be valid trusts if the benefits were
    open to all the limitation to Methodists vitiates their charitable character.

    This House recently had occasion to consider this matter in connection
    with an educational trust in Oppenheim v. Tobacco Securities Trust [1951]
    A.C. 297, and my noble and learned friend, Lord Simonds, then stated the
    law thus: " It is a clearly established principle of the law of charity that a
    " trust is not charitable unless it is directed to the public benefit. This
    " is sometimes stated in the proposition that it must benefit the community
    " or a section of the community. Negatively it is said that a trust is not
    " charitable if it confers only private benefits . . . These words ' section
    " ' of the community ' have no special sanctity, but they conveniently indicate
    " first, that the possible (I emphasise the word 'possible') beneficiaries
    " must not be numerically negligible, and secondly, that the quality which
    " distinguishes them from other members of the community, so that they
    " form by themselves a section of it, must be a quality which does not
    " depend on their relationship to a particular individual. It is for this
    " reason that a trust for the education of members of a family or, as in
    " In re Compton. of a number of families cannot be regarded as charitable.
    " A group of persons may be numerous but, if the nexus between them
    " is their personal relationship to a single propositus or to several propositi,
    " they are neither the community nor a section of the community for chari-
    " table purposes." I shall also quote, for a reason which will appear later,
    from the judgment of the Privy Council delivered by Lord Wrenbury in
    Verge v. Somerville
    [1924] AC 496: " To ascertain whether a gift constitutes
    " a valid charitable trust so as to escape being void on the ground of
    " perpetuity, a first enquiry must be whether it is public—whether it is for
    " the benefit of the community or of an appreciably important class of the
    " community. The inhabitants of a parish or town, or any particular class
    " of such inhabitants, may, for instance, be the objects of such a gift, but
    " private individuals, or a fluctuating body of private individuals, cannot."
    The contrast between a section of the community and a fluctuating body of
    private individuals has been used as the proper test in several cases

    15

    without any suggestion that it is an inadequate test, and it appears to
    have its origin in the speech of Lord Cairns in Goodman v. Mayor of Saltash
    7 App. Cas. at p. 650.

    If these are the criteria to be applied in this case then it was not disputed
    that members of the Methodist Church are a section of the community and
    an appreciably important class of the community and are a particular class
    of the inhabitants of West Ham and Leyton. I would not embark on any
    theological enquiry, but it appears to me to be beyond doubt that member-
    ship of any branch of the Christian Church is a quality which does not
    depend on the members' relationship to any individual or propositus. There
    may be small sects which are not sufficiently numerous to form an
    appreciably important class of a community, but no one would suggest that
    that is true of the Methodist Church. Indeed, I understood Counsel for the
    Appellants to admit that the beneficiaries in this case would be a sufficient
    class to be proper objects for a charitable gift for educational or religious
    purposes or for the relief of any kind of disability or distress, and that it
    would not matter in such cases that the benefits were not confined to those
    who could be said to be in poverty. But the beneficiaries in this case are
    ordinary people not necessarily suffering from any disability and some at
    least of the purposes may be neither religious nor educational, and it was
    argued that in such a case a trust cannot be charitable in the eye of the Jaw
    unless the benefits are open to the whole community or at least to all the
    inhabitants of an area. The argument was that while there could be a valid
    charitable trust of the fourth class in favour of a section of the community
    consisting of the inhabitants of a particular area it would not be valid if in
    favour of a section of the community denned in any other way. I can see no
    justification in reason for this distinction, but it has often been pointed out
    that the law of charity is full of anomalies and I must, therefore, examine
    the argument.

    The Appellants found this argument on Lord Macnaghten's well-known
    classification in Income Tax Commissioners v. Pemsel
    [1891] AC 531 at
    p. 583 : " ' Charity ' in its legal sense comprises four principal divisions:
    " trusts for the relief of poverty ; trusts for the advancement of education;
    " trusts for the advancement of religion; and trusts for other purposes
    " beneficial to the community, not falling under any of the preceding heads."
    They say that " beneficial to the community " means beneficial to the whole
    community. But then they are immediately faced with this difficulty: they
    admit that a trust for the relief of sick or disabled Methodists could be a valid
    charitable trust although its benefits were open to all Methodists rich and
    poor alike but to no one else. But they get over the difficulty by saying that
    any such trust falls within Lord Macnaghten's first class and that when he
    said " trusts for the relief of poverty " he meant to include trusts for the relief
    of disability or distress whether financial or not. I find it difficult to believe
    that Lord Macnaghten was ever guilty of such inaccurate use of language,
    and I feel sure that this was not his intention here, because on the next page
    in the Law Reports he refers to the first three classes in these words : " the
    " advancement of religion, or the advancement of education, or the relief of
    " the poor ". The word " poverty " is sometimes loosely or metaphorically
    used to mean lack of some thing other than money, but no one could say
    " relief of the poor " if he meant to include relief of disabled people irrespec-
    tive of their means. But it is said that Lord Macnaghten took his classifica-
    tion from the argument of Sir S. Romilly in Morice v. Bishop of Durham 10
    Ves. 522 (which can be found quoted by Lindley L.J. in In re Macduff [1896]
    2 Ch. at p. 466). " First, relief of the indigent; in various ways: money:
    " provisions: education: medical assistance etc.; secondly, the advancement
    " of learning ; thirdly, the advancement of religion ; and fourthly, which is the
    " most difficult, the advancement of objects of general public utility ". And it
    is said that " general public utility " cannot include a case where the bene-
    ciaries are only a class of the community. But the same difficulty arises here
    again : in which class are we to put a trust for the benefit of disabled
    Methodists? The Appellants again say in the first class, but the word
    " indigent" appears to me to be as inappropriate as " poor" to
    include disabled people of ample means. It may be that Sir S
    .

    16

    Romilly did not have in mind cases of this kind: I have not
    made a search to see whether any had come before the Court at
    that time. But Lord Macnaghten did not merely copy the words of Sir S.
    Romilly. He made at least one significant alteration, substituting " education "
    for " learning ": for education is now regarded as wider in scope than learn-
    ing in the sense in which I think Sir S. Romilly used the word. And he
    omitted the word " general " in the description of the fourth class. I cannot
    believe that this was due to inadvertence; it seems to me much more likely
    that he was not satisfied that it should be included.

    But a meticulous examination of words used by judges, however eminent,
    cannot be decisive if these words were used in cases where the present question
    was in no sense in issue, so I turn to consider the authorities. In Verge v.
    Somerville
    [1924] AC 496, the bequest was " unto the trustees for the time
    " being of the ' Repatriation Fund ' or other similar fund for the benefit of
    " New South Wales returned soldiers ". There was no such fund in existence
    bin it was held that this was a valid charitable trust and that a scheme should
    be settled. The judgment of the Board was delivered by Lord Wrenbury. He
    made it plain, particularly on p. 503. that this case fell within the fourth of
    Lord Macnaghten's divisions of charity, and he stated the test to be applied
    in the words which I have already quoted, and I repeal the crucial words :
    " the inhabitants of a parish or town, or any particular class of such inhabi-
    " tants "
    (the italics are mine) " may, for instance, be the objects of such a
    " gift ". He then posed the question whether if this lest is satisfied poverty is a
    necessary element and continued : " In argument it was scarcely pressed that
    " it is necessary, and after the decision in Goodman v. Mayor of Saltash 7
    " App. Cas. 633 it was not possible to maintain the general proposition that it
    " is. A trust or condition in favour of the free inhabitants of ancient tene-
    " ments in the borough of Saltash, in accordance with a usage whereunder
    " they had the privilege of dredging for oysters, was there held to be a valid
    " charitable trust, and. obviously, some of the inhabitants might not have been
    " poor ". Then on p. 506 he said : " It is a public trust and is to benefit a class
    " of the community--namely, men from New South Wales who served in the
    " war and were returned or to be returned to their native land . . . Their Lord-
    " ships have no doubt that this is a charitable purpose. If it were (which in
    " their opinion it is not) necessary to find that need of assistance is to be a
    " qualification for benefit . . . and if it were necessary to find a reference to
    " poverty, their Lordships have no difficulty in finding it ". Accordingly, the
    ratio decidendi was that without poverty being a qualification there was a valid
    charitable trust within Lord Macnaghten's fourth division in favour of a class
    of the community defined otherwise than by reference to all the inhabitants
    of any particular area. It is true that there was no discussion of the argument
    now submitted by the Appellants, but that was because it had not then
    occurred to anyone to raise the question ; and if this case stood alone it would
    not be fatal to the Appellants' argument because your Lordships are not
    bound by decisions in the Privy Council.

    But your Lordships are bound by a previous decision in this House, and
    it appears to me to be unquestionable that in Goodman v. Mayor of Saltash
    this House decided that there was a valid charitable trust where there was no
    question of poverty or disability or of education or religion, and where the
    beneficiaries were not by any means all the inhabitants of any .particular
    area. Lord Selborne, L.C. said (at p. 646) that the usage was " confined to
    " a particular class of persons, viz., the ' inhabitants of ancient messuages
    "' within the borough ' (whose number would not be capable of indefinite
    " increase)". Lord Blackburn based his dissent on the fact that he thought
    it quite clear that they were not the public at large (p. 654), and Lord
    Fitzgerald regarded them as a recognised class within the borough (p. 668).
    It is quite true that some parts of the ratio decidendi in Goodman's case have
    been so modified by subsequent decisions of this House that it would appear
    that those noble and learned Lords who took part in these decisions did not
    accept as an inflexible rule that this House is bound by every part of every
    ratio decidendi in every previous case. But no one has ever suggested that
    the rule that we are bound by actual decisions of the House is other than
    absolute and inflexible, and, apart altogether from the ratio decidendi in

    17

    Goodman's case, it appears to me that the actual decision in that case is
    inconsistent with the Appellants' argument. Moreover, if there has been a
    modification of that ratio decidendi, it has only been with regard to the
    question whether the trust purposes must be not only public purposes but
    also of such a nature as to be charitable in character, and on other matters,
    including that now in question, the case appears to me to be fully
    authoritative.

    I may add that I have found no support for the Appellants' submission that
    Lord Macnaghten's first class can include cases for relief of distress or dis-
    ability where poverty is not a necessary qualification for receiving benefits. But,
    besides the authorities I have dealt with, there are a number of expressions
    or indications of opinion that such cases fall within the fourth class. For
    example, I think that it clearly appears in In re Hobouon Aero Components
    [1946] Ch. 194 at pp. 202, 203, that Lord Greene, M.R. thought that the relief
    of air raid distress would be a good charitable object within the fourth class,
    and in Oppenheim's case at p. 311 Lord Normand referred to this and other
    cases as being within that class. I shall not trouble your Lordships with
    further examples.

    I must now examine the case of Trustees of the Londonderry Presbyterian
    Church House v. Commissioners of Inland Revenue,
    27 T.C.431 : 1946
    N.I. 178. The Appellants relied on it for two purposes: first as an authority
    on the question whether the trust purposes in this case are charitable in their
    nature, and secondly in support of the argument which I am now consider-
    ing. On the former question much depends on the construction of the
    particular deed, and on that matter I shall be as brief as I can but the second
    is a pure question of law and, as this case contains in the judgment of
    Babington, L.J. the only authority which the Appellants were able to cite
    in support of their argument, I must deal with it in more detail.

    The trust purposes so far as relevant were " to permit the same or any
    " part thereof to be used as a Hall for meetings or for Social or Recreation
    " purposes in connection with the various Presbyterian Churches in the City
    " of Londonderry and the surrounding district or as a Hostel or Boarding
    " House or as a Library or for such other purpose or purposes as the Board
    " of Governors . . . shall from time to time think fit, it being the true
    " intention and meaning of these presents that said premises shall be used
    " for the purposes of assisting and helping in the religious moral social and
    " recreative life of those connected with the Presbyterian Church . . .
    " . . . in such manner as the said Board of Governors . . . shall
    " from time to time think right." These purposes appear to me to be con-
    siderably wider than those set out in the Conveyance of the hall in the present
    case. I have already said that I would not have held that trust in this case
    to be charitable if I had thought that the recreation permitted was not merely
    ancillary to the other purposes and that the hall could be freely used for
    recreation and entertainment by those who took no part in the other activi-
    ties. I think that both the Londonderry case and the present case are near
    the border line. If I could construe the trust provisions in the way in which
    Lord MacDermott (then MacDermott, J.) construed them I would reach the
    result which he reached but, on the whole, I prefer the construction put on
    these provisions in the Court of Appeal and on that construction the premises
    could be used for non-charitable purposes in ways not purely ancillary to the
    charitable purposes set out in the deed, and it appears that they were in fact
    so used. I do not find in this case any sufficient answer to the special con-
    sideration which I have stated with regard to the hall in the present case.
    And it appears to me to have no bearing on the present case with regard
    to the playing field.

    On the second question, what is a sufficient class of the community. Lord
    MacDermott and Andrews, L. C.J. rejected the argument for the present
    Appellants for reasons with which I am in substantial agreement, but
    Babington, L.J. took a different view. He said (at 27 TC pp.451 and 452)
    —" The Presbyterian Church is not a section of the public. Its members, or
    " those of its members to be benefited under this trust, are no doubt members
    " of the public, but they are not a section of it any more than were the work-
    " people in In re Drummond [1914] 2 Ch.90. and the trust is therefore not a

    18

    " trust for general public purposes but for a fluctuating body of private
    " individuals . . . Considerable confusion has, I think, arisen from a failure
    " to distinguish between the public element in cases under the first three of
    " Lord Macnaghten's categories and the fourth. Under the first three the
    " charitable intention must be established, i.e., for the relief of poverty, the
    " advancement of religion, or the advancement of education. The objects
    " must be of a public nature, as FitzGibbon, L.J. says, but it is immaterial
    " under these categories how the class is delineated provided it is adequate
    " in numbers or importance. In cases falling within category number four,
    " however, there can be no charity until it is shewn that the gift is to or for
    " the benefit of the public or a section of the public ... If this trust
    " had been for the advancement of religion the class would clearly be suffi-
    " cient in numbers and importance to sustain it as a good charitable trust,
    " though it only benefits a particular faith, the members of which do not
    " constitute a section of the public."

    My Lords, the reasoning in the passage which I have quoted appears to me
    to be in direct conflict with the decision of this House in Oppenheim's case,
    and it is right to say that that case had not been reported when Babington,
    L.J. gave his judgment. In Oppenheim's case the trust was for the advance-
    ment of education, but the decision of this House was that it is not enough
    that the class of beneficiaries is numerous, it must also be a section of the
    community and the ratio decidendi applies equally to a trust for the advance-
    ment of religion. So if the reasoning of Babington, L.J. is correct and the
    members of a religious denomination do not constitute a section of the public
    (or the community) then a trust solely for the advancement of religion or of
    education would not he a charitable trust if limited to members of a par-
    ticular Church. Of course, the Appellants do not contend that that is right:
    they could not but admit the members of a Church are a section of the com-
    munity for the purpose of such trusts. But they maintain that they cease
    to be a section of the community when ii comes to trusts within the fourth
    class. Babington. L.J. gives no support to that contention, but the Appel-
    lants cannot succeed on this argument unless that contention is sound.
    Poverty may be in a special position, but otherwise I can see no justification
    in principle or authority for holding that when dealing with one deed for
    one charitable purpose the members of the Methodist or any other church
    are a section of the community, but when dealing with another deed for
    a different charitable purpose they are only a fluctuating body of private
    individuals. I therefore reject this argument and on the whole matter I am
    of opinion that this appeal ought to be dismissed.

    Lord Tucker

    MY LORDS,

    Lord Justice Jenkins' analysis of the two conveyances in question led
    him to the conclusion that the object of the first trust was the promotion
    of the religious, social and physical well-being of persons resident in the
    County Boroughs of West Ham and Leyton, and of the second trust the
    promotion of the moral, social and physical well-being of persons so resident
    who are considered by the leaders of the Stratford Newtown Methodist
    Mission to be likely to become members of the Methodist Church and
    to be of insufficient means otherwise to enjoy the advantages provided by
    the deed, and that the remaining provisions merely prescribe the means
    whereby these objects were to be attained.

    My Lords, I agree with this construction of the deeds and I am also in
    agreement with all the members of the Courts below in holding that these
    trusts cannot be regarded as trusts for the relief of poverty.

    In considering whether they fall within the fourth class of Pemsel's case,
    as the Court of Appeal have held, or within Class 2—trusts for the advance-
    ment of education—as was submitted in the alternative for the first time
    before your Lordships, the words which, in my view, create the difficulty

    19

    are " the promotion of social well-being". This is an extremely vague
    phrase which may have different meanings to different minds and may
    include things considered by some, but not by others, to be advantageous.
    It would appear to cover many of the activities of the so-called " welfare
    " state " and to include material benefits and advantages which have little
    or no relation to social ethics or good citizenship, concepts which are them-
    selves not easily definable. I find it impossible to construe these trusts in
    such a way as to restrict the operation of this language to " promoting or
    " inculcating those standards of secular conduct or behaviour expected of
    " a good neighbour and a good citizen " as the Court of Appeal have done.
    It would, I feel, be a considerable extension of any previous decision to
    allow language of this vague nature to qualify a trust for inclusion as
    charitable within the spirit and intendment of the preamble to the Statute
    of Elizabeth.

    The present case is not unlike that of Londonderry Presbyterian Church
    House v. Commissioners of Inland Revenue
    27 Tax Cases 431. The language
    is not, of course, identical. In the Irish case the relevant words were: —

    " Upon trust to permit the same or any part thereof to be used as a
    " Hall for meetings or for Social or Recreation purposes in connection
    " with the various Presbyterian Churches in the City of Londonderry
    " and the surrounding district or as a Hostel or Boarding House or as
    " a Library or for such other purpose or purposes as the Board of
    " Governors . . . shall from time to time think fit, it being the true
    " intention and meaning of these presents that said premises shall be
    " used for the purposes of assisting and helping the religious moral
    " social and recreative life of those connected with the Presbyterian
    " Church in the City of Londonderry and surrounding district in such
    " manner as the said Board of Governors . . . shall from time to time
    "think right".

    Lord Chief Justice Andrews in the course of his judgment hi the Court of
    Appeal said: -

    " Judicial minds have operated not always consistently on facts
    " admittedly different; and the result can only be described as in a
    " measure chaotic. I shall simply content myself with saying that I
    " find nothing in the statutes referred to which would assist me in holding
    " that the trusts in the present case for religious, moral, social and
    " recreative purposes, excluded as I have held them to be from Lord
    " Macnaghten's third class, fall within the fourth class as a valid
    " charitable trust. The test is not whether the objects or purposes aimed
    " at are beneficial to or receive the general acceptance of the community.
    " It is simply whether they conform or not to the requirements and
    " essentials of a legal charily ".

    My Lords, I would respectfully adopt this language and apply it to the
    present case.

    For this reason, which. I think, also in conformity with the decision of
    this House in Williams' Trustees v. Inland Revenue Commissioners [1947]
    A.C. 447. I would allow this appeal without expressing any view on the
    question whether the beneficiaries form a sufficient class for the purposes
    of Class 4 of Pemsel's case.

    Lord Somervell of Harrow

    MY LORDS,

    I am unable to accept the construction put on these deeds by the Court
    of Appeal. Before addressing myself to the words I will make one or two
    general observations. I agree with the Court of Appeal in rejecting the
    argument that as a matter of law a trust to qualify under Lord Macnaghten's
    fourth class must be analogous to the repair of " bridges portes havens
    " causwaies churches seabankes and highewaies " being the examples given

    20

    in the preamble outside the three main categories of poverty, religion and
    education. The words used by the Court of Appeal in In re Strakosch
    deceased [1949] Ch. 529, do not afford any basis for this argument as
    Jenkins, L.J., demonstrated. The reference was to show that the repair
    of a bridge is charitable notwithstanding its use by rich as well as poor.
    The submission is inconsistent, in my opinion, with some of the cases decided
    under the fourth head. I think, however, that a trust to be valid under this
    head would normally be for the public or all members of the public who
    needed the help or facilities which the trust was to provide. The present
    trust is not for the public.

    I cannot accept the principle submitted by the Respondents that a section
    of the public sufficient to support a valid trust in one category must as a
    matter of law be sufficient to support a trust in any other category. I think
    that difficulties are apt to arise if one seeks to consider the class apart
    from the particular nature of the charitable purpose. They are, in my
    opinion, interdependent. There might well be a valid trust for the promo-
    tion of religion benefiting a very small class. It would not at all follow
    that a recreation ground for the exclusive use of the same class would be a
    valid charity though it is clear from the Mortmain and Charitable Uses Act,
    1888. that a recreation ground for the public is a charitable purpose.

    This trust not being for the public, the necessary element of public benefit
    if present must be found in the purposes. I will deal with the first deed
    the wording of which is more favourable to the Respondents' argument
    in that it contains an express reference to religious services and instruction.
    It is not, however, suggested that the trust as a whole can be treated as
    one for the promotion of religion, the other purposes being merely ancillary.
    I agree with the Courts below that the " means " clause has no application
    to the facilities for religious services and instruction. The clause is im-
    portant in that it implies that the advantages, social, physical and recrea-
    tional are a question of means. The more pecunious members can get
    them elsewhere. The leaders would no doubt organise (he social and
    recreational activities, but if it was intended that their spiritual and moral
    influence should play an important part the advantages would not have been
    referred to as a question of means. The word " well-being " though qualified
    by " religious " as well as " social and physical " means primarily, in my
    opinion, a happy or contented state. Social well-being would be promoted
    when people were happy together—an important factor in institutional life.
    Physical well-being is promoted by exercise or recreation and the health
    and contentment which normally follow. " Social training " is an ambiguous
    expression and may well be too vague. Its meaning to me is training in
    social behaviour, in manners. I think, therefore, these words entitle the
    Trustees to run a social centre in the ordinary sense for the Methodists
    and prospective Methodists as set out in the deed. On this view the trust,
    limited as it is, is plainly not a charity, and the Court of Appeal would,
    as I read their judgments, have so held.

    Had I been able to agree with the more charitable construction placed
    on the deeds by the Court of Appeal I should have felt great difficulty in
    reconciling their conclusion with the decision of this House in Williams'
    Trustees
    v. Inland Revenue Commissioners (1947) A.C. 427. I am aware
    of the differences that could be emphasised, but on the whole I think the
    deed in Williams' case was nearer the borderline than the present deeds.

    The Attorney-General as amicus curiae made certain submissions as to
    recreation grounds for the public and village halls. Nothing that I have
    said is to be taken as throwing any doubt or light on these matters. Where
    a ground or hall is for the public different considerations clearly arise.

    I would allow the appeal.

    (30802) Wt. 8070—68 35 2/55 D.L./PA/19


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