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England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Beloved Wilkes' Charity, Re [1851] EWHC Ch J52 (28 April 1851)
Cite as: [1851] EWHC Ch J52

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Neutral Citation Number: [1851] EWHC Ch J52
42 ER 330, (1851) 3 Mac & G 440


28 April 1851




    Beloved Wilkes, by his will, dated the 15th September 1722, devised certain property to trustees, upon trust, to apply the income to the maintenance, education, schooling, qualifying for, putting to, and keeping at Oxford a lad, in order to make him a minister of the Church of England, such lad to be chosen by the trustees from either of the four parishes therein specified, and of such parents as were not of ability to maintain and educate him as aforesaid. The trustees named were the incumbents of three of the parishes.
    The original income of the property devised was 60 a year, but nothing having been done for many years towards applying the funds for the purposes of the trust, the income had increased to an annual amount of above 250. In 1847 a scheme for the management of the charity was, on the application of the trustees, settled by the Master, and confirmed by the Court. By this scheme the trustees were enabled, in the event of not finding a lad in either of the specified parishes whom they thought eligible, to choose one from any other parish of England or Wales but in every instance in which a candidate, fit or proper in the judgment of the trustees, could be found in either of the specified parishes, he was to be preferred.
    It appeared that, before the appointment of the trustees, by whom the selection in question was made, there had been three elections, and that on each occasion lads not belonging to either of the parishes had been selected, and that during the time of the same trustees, and previously to 1848, there had been one election, when, also, a lad not belonging to either of the parishes, was chosen. It further appeared that, previously to the selection of C. Joyce, the father of W. Gale wrote to the Rev. W. S. Robinson, one of the trustees, to know whether the funds of the charity would be applicable to the maintenance and education of his son for the purpose and objects of the charity, and requested the interest of Mr. Robinson in favour of his son if the funds were applicable. To this letter Mr. Robinson replied that he would communicate the matter to his co-trustees at their meeting, but expressed his individual opinion that the funds were not applicable to the education of Mr. Gale's son, and that the lad was not eligible. Nothing further took place on the part of Mr. Gale previously to this election.
    It appeared that, about the same time, a correspondence had been going on between the Rev. T. B. Coney, another of the trustees, and the Rev. Mr. Joyce, the brother of C. Joyce. This gentleman, who was a clergyman of the Church of England, and engaged in the work of tuition, had, some time previously, made a request to Mr. Coney that, in the event of a vacancy, his brother might have the benefit of the charity. The effect of the correspondence on the part of Mr Coney was to ascertain that this wish was still entertained.
    On the 9th June 1848 the trustees met, and C. Joyce was selected as before stated; and on the 13th June 1848 Mr. Robinson wrote to the father of W. Gale saying that he had, according to his previous promise, laid his, Mr. Gale's, application before the trustees, and that, it having been considered, he was directed to inform him that the funds of the charity were not at present applicable to the education of his son. Some further correspondence then took place, which resulted in the father of W. Gale and four other persons, residents in the four parishes named in the will, presenting a petition praying a declaration that the trustees ought not to have elected C. Joyce, but ought to have elected W. Gale.
    This petition having come on to be heard before the late Vice-Chancellor of England, His Honour, on the 9th February 1850, made an order declaring that the election of C. Joyce was, under the circumstances, improper and a breach of trust; that W. Gale was eligible; and that the trustees should proceed to a new election, and pay the cost of the petition. From this decision the trustees now appealed to the Lord Chancellor.
    Affidavits were read on both sides in the course of the argument. It will not, however, be necessary to notice them particularly, with the exception of one filed in opposition to the petition, in which the trustees deposed, among other things, that in no instance of the previous elections above referred to had the persons been chose out of any of the prescribed parishes, there not appearing to be, after a due investigation made, any proper object of the charity within the said parishes; that the trustees, the deponents, were all well acquainted with the respective parishioners and their families, and, in particular, that W. Gale was known to one of the turesees, the Rev. L. B. Clutterbuck; that the regular annual meeting of the trustees was duly held in June 1848 for the purpose, among other things, of nominating and electing a fit and proper object for the benefit of the charity; and, as to this meeting, the trustees deposed "We were all present together during the whole of such meeting, and the cases of the said youths C. Joyce and W. Gale were then and there fully discussed and considered by us all most impartially, and no other case was sidered all the said parishes; and in the full and free and fair and bona fide exercise and discharge of the discretion and duty given to and reposed in us in and for the purpose of the execution of the charity, and without favour or affection or caprice or ill-feeling towards or with respect to any individual or any class or grade of persons whatever, we unanimously considered the said C. Joyce the proper object for the benefit of such charity trust, and elected him accordingly."
    Mr. Malins, Mr. R. Palmer, and Mr. Harrison, for the trustees, submitted that, by the will of the testator as carried out by the scheme, an unlimited discretion was vested in the trustees to select objects of the charity from any other parish in the event of there not being an individual of the requisite qualifications in the parishes specified by the will; that the rule of equity as well as at law was not to review the personal discretion of trustees unless on a charge of corruption, or where reasons were assigned by the trustees themselves which were untenable; Attorney-General v. Scott (1 Ves. Sen. 413), Ex parte Inge (2 Russ. & M. 590), The King v. The Bishop of London (13 East, 419), The King v. The Archbishop of Canterbury (15 East, 117), The King v. The Bishop of Gloucester (2 B. & Ad. 158), The Queen v. The Governors of Darlington School (6 Q. B. Rep. 682), Ex parte Wrangham (2 Ves. Jun. 609), Campbell v. Mackay (2 Myl. & Cr. 31), Penny v. Turner (2 Phil. 493), Fordyce v. Bridges (2 Phil. 497). They further submitted that there was no ground whatever for making the trustees pay costs, In re Bedford Charity (5 Sim. 578). They referred also to In re University College, Oxford (2 Phil. 521), and to Potinger v. Wightman (3 Mer. 67).
    (The Lord Chancellor mentioned the case of Gorham v. The Bishop of Exeter (2 Rob. Ec. Rep. 1).
    Mr Bethell and Mr Schomberg, for the Petitioners, contended that there was nothing in the will to warrant the selection by the trustees of an individual not domiciled in the will to warrant the selection by the trustees of an individual not domiciled in one or other of the parishes named, The Attorney-General v. The Earl of Stamford (1 Phil. 737); and that, although the existing scheme contemplated such a selection, yet that was only to be when no qualified person could be found in the specified parishes. They further submitted that all the cases which had been cited on the other side shewed that the trustees were bound to give their reasons, and that in the present case the trustees, though not charged with corrupt motives, had miscarried in the execution of their duty.
    Mr. Malins, in reply.
    April 28. THE LORD CHANCELLOR now delivered judgment, and after stating the several facts of the case to the effect above mentioned, proceeded as follows:
    It is objected upon the present occasion that the trustees in having elected C. Joyce as the object of the charity, and afterwards in applying the funds of it for his benefit, have miscarried in their duty. It is said, first, that C. Joyce was not eligible absolutely, and, secondly, that he was not eligible relatively, that is, that W. Gale being of one of the parishes and being qualified was entitled to a preference to C. Joyce, even supposing C. Joyce to have been qualified. It is further said that the trustees miscarried in not giving due notice of their intention to proceed from election, and that the effect of this may have been to have excluded persons from coming forward who were well entitled to have the funds of the charity applied to the education of their sons.
    His Lordship here adverted to an impression which apparently existed on the part of the Petitioners and others, that the trustees had laid down a rule that the sons of farmers were not persons in a station of life fit to be objects of the charity, and expressed his strong conviction that there was no ground whatever for the idea, and that it was an entire error on the part of those entertaining it.
    His Lordship next considered the objection taken by the Petitioners on the ground of want of notice of the election, and, referring to the statements in the affidavits filed on both sides on this subject, observed that it was impossible to say that injury had been done to any human being by the alleged want of notice, and that even if notice was necessary, the objection was purely technical, and resolved itself into a mere question of regularity, it being clear that the specified parishes had been exhausted by an examination for eligible candidates.
    His Lordship then noticed the general question of what was to constitute eligibility in parties claiming to have the funds of the charity applied for their benefit, and remarked, at considerable length, on the delicate nature of the duty cast upon the trustees in determining this point, and on the disastrous results which would inevitably attend any other method of dealing with the subject than that of "leaving it absolutely in the discretion of the trustees always honestly to be exercised." His Lordship next adverted to the question of the eligibility of W. Gale, so far as it depended upon his father's competency or incompetency to educate him as stated in the will, and concluded by observing " I cannot say that there are brought before me materials to shew that these trustees have acted unfaithfully in coming to the conclusion that Mr. Gale's son is not eligible. Trustees with such a duty to perform are in a very painful situation, more especially clergymen, because when they are called upon to shew the bona fide exercise of their discretion, they may be required to state circumstances of a painful and irritating nature, irritating not only to the particular individual who may be personally affected by them, but to those who are in the same situation, and sympathise with him." His Lordship having then noticed that no particulars were stated tending to shew that W. Gale was ineligible on grounds purely personal to himself, proceeded to the following effect:
    The question, therefore, is, whether it was the duty of the trustees to enter into particulars, or whether the law is not, that trustees who are appointed to execute a trust according to discretion, that discretion to be influenced by a variety of circumstances (as, in this instance, by those particular circumstances which should be connected with the fitness of a lad to be brought up as a minister of the Church of England), are not bound to go into a detail of the grounds upon which they come to their conclusion, their duty being satisfied by shewing that they have considered the circumstances of the case, and have come to their conclusion accordingly. Without occupying time by going into a lengthened examination of the decisions, the result of them appears to me so clear and reasonable, that it will be sufficient to state my conclusion in point of law to be, that in such cases as I have mentioned it is to the discretion of the trustees that the execution of the trust is confined, that discretion being exercised with an entire absence of indirect motive, with honesty of intention, and with a fair consideration of the subject. The duty of supervision on the part of this Court will thus be confined to the question of the honesty, integrity, and fairness with which the deliberation has been conducted, and will not be extended to the accuracy of the conclusion arrived at, except in particular case. If, however, as stated by Lord Ellenborough in The King v. The Archbishop of Canterbury ( 15 East, 117), trustees thing fit to state a reason, and the reason is one which does not justify their conclusion, then the Court may say that they have acted by mistake and in error, and that it will correct their decision; but if, without entering into details, they simply state, as in many cases it would be most prudent and judicious for them to do, that they have met and considered and come to a conclusion, the Court has then no means of saying that they have failed in their duty, or to consider the accuracy of their conclusion. It seems, therefore, to me, that having in the present case to look to the motives of the trustees as developed in the affidavits, no ground exists in imputing bad motives. The Petitioners, indeed, candidly state, on the face of their petition, that they do not impute such motives, they merely charge the trustees with a miscarriage as regards the duty which they had to perform. I cannot, therefore, deal with the case as if the petition had contained a statement of a different kind, and if I could, still I should say, having read the affidavits, that I see nothing whatever which can lay the foundation of any judicial conclusion that the trustees intentionally and from bad motives failed in their duty, if they failed at all.
    With respect to the eligibility of W. Gale, if the trustees acted upon the presumption that his father was competent to educate him as a minister of the Church of England, there are not circumstances enough shewn to enable me to say that they came to a wrong conclusion in that respect, and if, on the other hand, they acted with regard to the young gentleman himself, no facts are stated or reasons given on the subject. I should say, as a general rule, that the Court ought not to require persons to state reasons for conduct which they are authorised to pursue, because such a statement made in one case, where it may possibly be done without evil and mischief, has a tendency to create an objection against those who, in other cases, do not make it, where a statement of reasons might be most mischievous. In the present instance, I do not know, nor have I any judicial means of knowing, whether the trustees acted upon the ground of the father's competency, or on anything in respect of the son: they have forborne to state anything in the slightest degree disrespectful or painful to either, and in that I think they have acted a very judicious part; for they would, undoubtedly, have greatly increased that feeling of disappointment and displeasure which has arisen at the election of C. Joyce, if they had entered into any statement reflecting either upon Mr. Gale or his son.
    His Lordship here adverted to various suggestions of misconduct against the trustees, which, though not very distinctly brought forward by the affidavits in support of the petition, had formed the subject of comment by counsel at the Bar: they related to the non-election of any lads belonging to the parishes, the tenor of the correspondence between the Rev. Mr. Coney and the Rev. Mr. Joyce, and that of the correspondence between the Rev. Mr. Robinson and Mr. Gale, and also to the manner in which the election had been conducted, this last being relied on as shewing that the case of W. Gale had not been fairly considered. His Lordship having disposed of the several imputations, which he treated as not substantiated, proceeded as follows:
    I will now consider an objection, fairly and properly taken, on the part of Mr. Gale, namely, that if his son was equally eligible with C. Joyce, he was entitled to the preference. Nothing can be more clear than this, and if I saw any reason to think, which I do not, that the trustees did not also entertain this opinion, I should express myself more strongly; for there is no doubt that if there be in either of these parishes a youth who, in the honest judgment of the trustees or the majority of them, is fit and proper to be brought up as a minister of the Church of England, and his father is incompetent to bring him up to that situation, he is entitled to the preference over any not of these parishes, though in other respects fully equal to him. The affidavit of the trustees states that they investigated and properly considered the parishes, and they must have so done from considering the parishes as the preferable places from which to select the candidate. It is remarked, however, that the affidavit does not in terms state that W. Gale was ineligible. This is so, and it would have been better had the evidence been more explicit on the point; but, at the same time, I think it is impossible to read the affidavit without understanding the trustees distinctly to say that W. Gale was not eligible. They say that they fairly considered the cases of the two youths. Now, they could not have done this in reference to W. Gale, unless they considered his case individually and on the point whether he was or was not eligible, unless, indeed, they proceeded upon the idea of comparative eligibility, a notion which I cannot believe they entertained. I have attentively considered how far the inference sought to be drawn, that the trustees considered the cases in comparison one with another, is fairly deducible from the statement in the affidavit, and I must say that I consider that statement to import that W. Gale's merits were considered individually, and that C. Joyce's merits were considered individually, and that the trustees came to what they allege to be a conscientious conclusion that W. Gale was not eligible, this conclusion being founded either on his father's good circumstances, or on grounds personal to himself, or on some of the many reasons which might well exist in determining upon the eligibility of a youth to be brought up as a minister of the Church of England.
    The application, therefore, not being established on the ground of any exclusive rule adopted by the trustees which they had no right to adopt, and the absence of notice of the election forming no objection for the reasons I have before mentioned, and the affidavits stating that the claims of each of the candidates were fairly, honestly, and impartially considered, and not being able to discover any one fact which at all warrants me in doubting the correctness of this statement, I own it does appear to me that I have no just grounds upon which I can claim a right to exercise that discretion which is vested in the trustees, and to say that W. Gale was eligible, and that he, therefore, ought to have been elected.
    Then, to what conclusion should this lead in reference to the question of costs? I am not aware of any instance in which trustees have been fixed with costs, except where they have acted either upon improper motives, or with such neglect and want of caution as to render their conduct liable to be considered as amounting to a breach of trust. In cases of this kind I conceive they ought to be charged with costs; but there can be no reason for applying the same rule to a case where they are brought before a Court upon a petition, disclaiming any imputation of indirect motives, and containing a distinct statement that all that is imputed to them is a miscarriage in regard to their duty, and where, too, I see no ground for imputing to them any improper or negligent conduct. I think, therefore, that these trustees are entitled to their costs.
    The question next arises with regard to the costs of the Petitioners. I should be sorry to fix the stigma upon these gentlemen for having acted from an improper motive; it is however, plain that they have proceeded on a mistaken impression of the motives and conduct of the trustees. On the whole, it seems to me that I must order the Petitioners to pay their own costs, the costs of the trustees being paid out of the charity fund.

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