In Re - Estate of George Percy Smithson, Deceased; In Re - Application for Directions in connection with the Will of the above-named Deceased (Civil Case No. 33 of 1943 O.S.; Probate and Administration Cause No. 2 of 1942 at Nakuru) [1943]

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A bequest to Sedbergh School for annual educational trips to Europe for selected boys is a valid charitable gift for the advancement of education. A bequest to workers on a farm that had passed out of the testator's possession before death fails for impossibility. A residuary gift to African Leper Missionaries and leper hospitals is charitable in nature but void for uncertainty and impossibility of performance. The cy pres doctrine cannot apply where the will discloses no general charitable intention beyond the specific purpose stated, resulting in partial intestacy.

Outcome

First bequest upheld as charitable; second bequest failed; third bequest void; residue to be distributed on intestacy

Facts

George Percy Smithson died leaving a will dated 8 May 1938 containing three bequests: £3,000 to Sedbergh School governors for annual holiday trips for selected boys to the Continent of Europe; sixty shillings to each squatter family or worker on his Elburgon farm at death; and the residue to African Leper Missionaries and leper hospitals in Africa. Before his death, the Elburgon farm had passed out of his possession. An executor sought the court's directions on the validity and construction of these bequests.

Issues

1. Whether a legacy of £3,000 to the Governors of Sedbergh School for annual holiday trips to the Continent for selected boys constitutes a charitable trust exempt from the rule against perpetuities.
2. What is the true construction of a bequest of sixty shillings to each squatter family or worker on the testator's farm where the farm had passed out of the testator's possession before death.
3. Whether a gift of the residue to African Leper Missionaries and leper hospitals in Africa constitutes a valid charitable bequest.
4. Whether the doctrine of cy pres can be applied to save the residuary bequest for application to similar charitable purposes.

Orders

• The legacy of £3,000 to the Governors of Sedbergh School declared a valid charitable bequest.
• The bequest of sixty shillings to each squatter family or worker on the farm at Elburgon declared to have failed.
• The residuary bequest to African Leper Missionaries and leper hospitals declared void for uncertainty and impossibility of performance.
• The residue of the estate to be administered as an intestacy.
• Costs of all parties to be paid out of the estate.

Rules and key headnotes

Cases cited (15)

• Commissioners of Income Tax v Pemsel [1891] AC 531
• In re Drummond [1914] 2 Ch 90
• In re Mellady [1918] 1 Ch 228
• In re Mariette [1915] 2 Ch 284
• Shillington v Portadown UDC [1911] 1 IR 247
• In re Wann Estate [1937] 81 Sol Jo 397
• Re Corbyn [1941] 2 All ER 160
• Tharp Longrigg v People's Dispensary [1942] 2 All ER 358
• Hunter v Attorney General [1899] AC 321
• Attorney General v Whitely (1805) 11 Ves 241
• Attorney General v Boultbee (1794) 2 Ves 380
• Clark v Taylor (1853) 1 Drew 642
• In re Wilson [1913] 1 Ch 314
• In re University of London Medical Sciences Institute Fund [1909] 2 Ch 1
• In re Stanford [1924] 1 Ch 73

The original judgment as reported. Read the original PDF before relying on any passage.