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Recent Developments in the Cy-près Doctrine
Published online by Cambridge University Press: 16 January 2009
Extract
The law relating to charitable trusts is sadly technical and proverbially obscure. It has failed, it is said, to keep abreast of social developments and has thus attracted widespread criticism.
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- Research Article
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- Copyright © Cambridge Law Journal and Contributors 1957
References
1 Cmd. 8710.
2 p. 30.
3 p. 27.
4 Vaisey J., quoted at p. 230.
5 Moggridge v. Thackwell (1802) 7 Ves. 36 at p. 69.
6 Tudor, on Charities (5th ed.), p. 142.Google Scholar
7 See 2nd ed., p. 184.
8 e.g., 4th ed. (1906), ch. IV, s, 1 (c).
9 [1913] 1 Ch. 314 at p. 320.
10 Tudor, on Charities, 5th ed., p. 141Google Scholar (one exception is admitted), Tyssen's, Law of Charitable Bequests, 2nd ed., p. 184Google Scholar, Hanbury's, Equity, 6th ed., p. 242,Google ScholarKeeton's, Law of Trusts, 6th ed., p. 166.Google Scholar
11 p. 145.
12 Supra, at p. 322.
13 (1815) 1 Mer. 55.
14 See, for example, Da Costa v. De Pas (1754) Amb. 228: Elias de Pas left £1,200 for establishing a Jesuba or assembly for reading the law and instructing the people in the Jewish religion. It was held that the bequest was not good in law and the money was given not to the next-of-kin but to a Foundling Hospital for supporting a preacher and instructing the children in the Christian religion.
15 This must be one inference from the Nathan Committee's desire for a relaxation of the rules of the doctrine.
16 [1951] Ch. 373.
17 p. 377.
18 Re North Devon and West Somerset Relief Fund Trusts [1953] 1 W.L.R. 1260.
19 Supra.
20 [1921] 1 Ch. 655.
21 [1954] 1 W.L.R. 546.
22 p. 553.
23 [1954] 1 W.L.R. 700.
24 Supra.
25 p. 711.
26 p. 713.
27 p. 715.
28 p. 715.
29 p. 716.
30 The Times, June 29, 1955.
31 [1956] Ch. 417.
32 p. 421.
33 Re King [1923] 1 Ch. 243; Re Roger [1940] 1 Ch. 514.
34 [1956] 1 W.L.R. 1096.
35 This is the exception recognised by Tudor, on Charities, 5th ed., p. 141.Google Scholar
36 p. 1103.
37 [1956] Ch. 622.
38 p. 632.
39 Yet P. O. Lawrence J. had described such a suggestion as “absurd on the face of it” in Re Welsh Hospital (Netley) Fund, supra.
40 p. 633. Cf. Dr. L. A. Sheridan writing in (1954) 32 Canadian Bar Review 599, who considers that money put in collecting boxes and the like can never be bona vacantia as “it must be forever impressed with a charitable trust” and “trusts do not fail for want of a trustee” (p. 621). (Surely, however, the equitable interest could become bona vacantia.) His discussion of the cy-près doctrine (or of the two cy-près doctrines as he maintains) is valuable. But he concludes that a general charitable intention, semble in Parker J.'s strict sense (see p. 622) is necessary except in the “out-and-out” cases. His division of the doctrine into two does not, with respect, seem justified or desirable. It is one doctrine and should follow one principle—intention or presumed intention.
41 [1921] 1 Ch. 655.
42 p. 636. With respect, it is not clear why the difference should be material.
43 p. 639.
44 p. 641.
45 p. 643.
46 Per Parker J. in Re Wilson, supra.
47 As witness the divergence of judicial opinion in Re Hillier, supra.
48 In Mills v. Farmer, supra.