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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 >> Macintyre & Anor v Oliver & Ors [2018] EWHC 3094 (Ch) (15 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2018/3094.html Cite as: [2018] EWHC 3094 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building London, WC2A 2LL
		15/11/2018

MASTER SHUMAN :

1. This is a claim by Part 8 claim form issued on 19 July 2017 for guidance from the court on the true construction of the will trusts created by Violet Hamblen-Thomas ("Violet") and her husband Charles Hamblen-Thomas ("Charles") and on the identification of the beneficiaries. They had one son, Edwin Hamblen-Thomas ("Edwin"), who was known as Tom.
2. The first claimant relies on a witness statement dated 19 July 2017.
3. The position in relation to the defendants is as follows:

(i) The 1^st and 2^nd defendant is Victoria Baron Oliver nee Wallis ("Victoria"). She has been joined separately in a representative and personal capacity. Victoria has filed an undated acknowledgment of service saying that she will abide by the court's decision. In addition she has filed a witness statement dated 30 January 2018. Victoria lives in the Republic of South Africa and was the goddaughter of Violet. Her mother, Enid Simpson ("Enid"), had been great friends with Violet throughout their lives.

(ii) The 3^rd defendant has played no part in the proceedings, which is inexplicable given that they contacted the claimant's solicitors, Knocker & Foskett ("KF"), by telephone on 20 December 2016. A certificate of service dated 15 August 2017 has been filed by KF confirming that the proceedings were served on the Trust headquarters on 16 August 2017.

(iii) The 4^th defendant has filed an acknowledgment of service dated 20 October 2017 and seeks a direction that it is the proper recipient of the legacy to St Bartholomew's hospital. Fiona Bickley, Director of Corporate Services of Barts Charity, has filed a witness statement dated 19 October 2017.

(iv) The 5th defendant has filed an acknowledgement of service dated 29 August 2017 although failed to tick section A, B, C, or D. Reverand Corne, a Clerk in Holy Orders and the Rector of the Benefice of Broughton with Bassington and Houghton and Motissfont within which is situated the parish of Mottisfont, has filed a witness statement dated 11 September 2017. He refers to a letter from KF dated 25 August 2017 in which they confirmed that they would seek an order that any sums due to the church under Charles's will should be paid to "the Church of the Parish of Mottisfont".

(v) The 6th defendant has filed an acknowledgement of service dated 18 August 2017 confirming that it does not contest the claim.

(vi) The 7th defendant had played no part in the proceedings. A certificate of service dated 15 August 2017 has been filed by KF confirming that the proceedings were served at the 7th defendant's usual residence. On 29 March 2018 Ms Helen Pines-Richman, direct access counsel, attended court seeking an adjournment of the disposal hearing. No evidence was filed in respect of the application for an adjournment and no explanation given as to why the 7^th defendant had only elected to engage in the proceedings on the day of the disposal hearing. Counsel was unable to articulate the basis of any adjournment. I refused that application and counsel withdrew. The 7^th defendant remained in court for the hearing.

4. I have had the benefit of very helpful detailed skeleton arguments supplemented by oral submissions from Mr Holmes and Mr Lewison.

THE WILLS AND FACTUAL MATRIX

5. Violet executed a will dated 16 December 1968 ("Violet's will"). By clause 1 she appointed Charles, Joseph Pearson Ede and Arthur Herbert Perks to be the executors and trustees. In broad terms Violet's will provided as follows:

Clause 2 gave all of her jewellery and clothing to Enid "but should she predecease me then I GIVE the same to her daughter", Victoria.

Clause 3 gave Charles a life interest in her freehold property known as Mottisfont House and if it was sold in her lifetime a life interest in the net proceeds of sale.

Clause 4 declared that her trustees shall hold her estate upon trust to hold the income on protective trusts for her son Edwin during his life and after his death upon trust for all or any of his children who attain the age of 21 years.

Clause 5 "In the event of my said son dying without leaving children as aforesaid my Trustees shall hold my estate (subject as aforesaid) on trust to pay thereout the sum of Two hundred and fifty pounds to the Ladies Guild of the Royal Medical Benevolent Fund and subject thereto shall hold the same on trust for the said Enid Simpson absolutely but should she predecease me then on trust for the said Victoria Wallis absolutely"

6. Violet died on 22 June 1973. Probate was granted to the executors on 7 February 1974. It can be seen from Violet's will that she left her estate on 3 trusts:

(a) Mottisfont House was to be held on trust for Charles for his life-time;

(b) Subject to (a) her estate was held on protective trusts for Edwin for his life and after his death on trust for all or any of his children who should attain 21 years;

(c) In the event of Edwin dying without leaving any children, £250 was to be paid to the Ladies Guild and the remainder to be held on trust for Enid absolutely and if she predeceased Violet to Victoria absolutely.

7. Charles made a will on 6 September 1982 ("Charles' will"). By clause 1 he appointed the partners in the firm of Hepherd Winstanley and Pugh to be his executors and trustees. The material parts of his will are as follows:

Under clause 2 his freehold property known as 41 Abbey Meads Romsey was held on trust to sell and divide the net proceeds of sale into two equal parts:

"(a) the first part to be given to the Special Trustees for St Bartolomew's and St Mark's Hospitals (a registered Charity) for them to establish a fund in the name of my late wife Violet Eulalie Hamblen-Thomas for the treatment at St Bartholomew's Hospital of children under the age of six years

(b) the second part to be given to the Chest Heart and Stroke Association Tavistock House … (a registered Charity) for the benefit of the Romsey Open Gate Stroke Club Romsey Hampshire".

Clause 5 the residue of his estate is then applied as follows:

(i) to pay debts testamentary and funeral expenses

(ii) to pay pecuniary legacies to the named people in (a) to (f), in some cases subject to conditions

(iii) the remainder to provide an income for life for Edwin and on his death to be divided into three parts and paid as follows:

(a) to be divided equally between the Romsey Cottage Hospital and the Blandford Hospital;

(b) to the Church of the Parish of Mottisfont Hampshire;

(c) "The third part to be paid to the proper officer of St Bartholomew's Hospital so that it can be used for the benefit of the Maternity Ward first to continue the existing practice of distributing to each mother a verse card in memory of my late wife and secondly with any residue for the purchase of an item of general use in connection with the Children's Unit such item to be purchased in memory of my late wife".

8. Charles died on 5 April 1983. Probate was granted on 6 December 1983.
9. Enid died on 4 September 1998.
10. Violet and Charles' son, Edwin, died on 14 August 2014 leaving no children.
11. The claimants are the trustees of Violet's will trusts and Charles' will trusts. They were appointed by deeds of appointment dated 6 July 2017.

THE ISSUES

The first issue – Violet's will: does the gift over to Victoria fail?

12. Mr Holmes postulates that "since the gift to Enid was merely contingent and had not vested in her prior to Edwin's death, it fails, and since Enid did not predecease Violet, the gift over to Victoria also fails." Victoria contends that as a matter of construction the gift to Enid in clause 5 of Violet's will does not fail. Mr Holmes has helpfully set out two alternative strands of analysis, if either is correct the gift to Enid or the gift over to Victoria did not fail.
13. Did the gift to Enid, under the principle of early vesting, vest in her on Violet's death? In Bickersteth v Shanu [1936] AC 290 (PC) a testator by his will appointed the appellants to be his executors and trustees. He devised certain real property in Lagos to his son and a separate clause stated that "These devises shall take effect upon my said son attaining the age of twenty-five years". The testator died in 1918. The son on attaining 25 years brought an action against the appellants claiming an account as from the date of the testator's death of the rents of the properties devised to him. Lord Maugham at pages 297 to 298 set out the established rule for construing devises of real estate, "they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness." Considering the whole of the will and the circumstances in which it was made and applying the rule the words "shall take effect" related to the devise taking effect in possession. It was not intended to impose a condition precedent on the devise and the son was entitled to the rents claimed.
14. The presumption in favour of early vesting applies whether the gift is of real or personal property. Mr Holmes submits that on the true construction of Violet's will the gift to Enid did not vest on the death of Violet. He remarks that had there been any children of Edwin who had attained the age of 21 there would have been a vested gift of the remainder to them. Indeed, had there been any children under 21 years following the rule in Phipps v Ackers (1842) 9 Cl & Fin 583 the gift might have vested in them in any event. Certainly, the wording of clause 5 would suggest that temporally it was Enid's death relative to Violet's that was significant rather than Edwin's. The gift to the children was not a further life interest but a gift of the remainder. I consider that the express terms of Violet's will provide that Enid's gift was contingent on the happening of two events: Edwin dying and leaving no children, whether over or under 21 years. The gift did not vest before Enid's death, as there is no residuary gift the residue passes on intestacy: to Charles' estate and Edwin's estate.
15. Mr Holmes in the alternative strand of his analysis suggests that the gift to Enid might be saved by construing the condition precedent as meaning "should she predecease Edwin" rather than "should she predecease me". The express wording of clause 5 provides that the conditions in the gift passing to Victoria are that Enid predeceases Violet and Edwin dies without children.
16. In Jones v Westcomb (1711) Prec Ch 316 the testator thought that his wife was pregnant with their child. By his will he devised a term of years to his wife for life and after her death to the child she was carrying. If the child died before the age of 21 one-third of the estate passed to the wife who was also appointed executrix and two-thirds to other persons. The wife was not pregnant. The following issues were raised,

"And two questions were made: 1st, Whether the devise to the wife of one third part of the term were good, because it happened she was not then ensient at all, and so the contingency upon which the devise to her was to take place never happened.

The other question was, Whether this term being part of the personal estate, and expressly devised to her for life, with such other contingent interest on the death of the supposed ensient child before 21, should shut her out from the surplus of the personal estate, which belonged to her as executrix, and so the surplus go in a course of administration, to be distributed amongst the plaintiffs as next of kin."

It was held that even though she was not pregnant at the time of the will the devise to her was good. The testator wanted the gift to take effect if his child died under 21 years and a fortiori he would want it to take effect if the child had never lived at all.

17. This argument was also successfully used in Re Fox's Estate [1937] 4 All ER 664 (CA). The testator's home-made will gave his estate to his executors to hold on trust as to one-quarter to his daughter Fanny and one-quarter for his daughter Anna and "after her decease for her children if she shall leave children", one-quarter to the children of his deceased son George and the remaining one-quarter to Thomas and Tiny Spinney. He also directed that the benefit under the will "shall become vested on the coming-of-age of the legatee and that any legacy which by the death of any person shall lapse shall go to my daughter Fanny." Anna died without children but crucially after the testator. Fanny asked the court to award Anna's share of the estate to her. At first instance the judge held that upon the true construction of the will the testator had not in terms provided for the event which actually happened: the cause of the lapse was not the death of Anna but her death without children. He considered that it was not possible to apply the rule in Jones v Westcomb and concluded that there was an intestacy as to Anna's share.
18. Sir Wilfred Greene MR set out the rule at page 666B-C as,

"Where a testator has provided for the determination of an estate in any of two or more events, and has then given a gift over expressly to take place in one only of those events, the court will, in the absence of any indication to the contrary, imply, by way of necessary implication, intention on the part of the testator that the gift over shall take effect, not merely in the specified event, but on the happening of any of the events which were to determine the previous estate."

19. The appellant argued that "lapse" should be giving a strict meaning and that it meant the death of the legatee during the testator's lifetime. However, the gift to Anna lapsed because she never had any children, not because she died. As to the application of the rule in Jones v Westcomb at page 667E-F Sir Wilfred Greene MR said,

"The testator has not said "by the death in my lifetime," but simply "by the death"; and his dispositions include not merely immediate gifts, with reference to which the argument is a forcible one, but also a settled legacy. Further, the sentence comes immediately after a provision to the effect that vesting is to take place only on the coming of age of the legatee. Having regard to all these circumstances, particularly to the fact that the testator has not added any point of time to the words "the death," I have come to the conclusion that the words "by the death of any person" there include the case of death not merely in the lifetime of the testator, but before the legacy vests in possession. If that be the true meaning, it seems to me that the word "lapse" cannot be construed in its strict technical sense."

The Court of Appeal concluded that the word "lapse" included the scenario, as here, where Anna had no children.

20. Romer LJ considered when the rule in Jones v Westcomb is engaged, at 669A-B,

"The principle is applicable, therefore, only in those cases where the court, looking at all the relevant circumstances of the case, including, of course, the will itself, comes to the conclusion that the testator must a fortiori have intended the disposition over to take effect in the event which has actually happened, although it is not the event which he has specified in his will as the one in which the gift over is to take effect. Looking at all the circumstances of this case, can anyone doubt for one moment that, if the testator had been asked what was to happen to this share of Mrs Perry if she died without ever having had a child at all, the testator would have said: "A fortiori the share is to go to my daughter Fanny." I agree, therefore, that the appeal must succeed."

21. In Re Graham [1929] 2 Ch 127 the testatrix, T, left her estate to her parents, P, for life, and thereafter to her husband, H. She directed that if H predeceased both of her parents the estate should pass to H's children. P died first, then H and finally T. It was argued that the children living at the date of T's death were entitled to the residuary estate by application of the rule in Jones v Westcomb. At page 130 Eve J said, "The husband had satisfied the condition of the gift in the lifetime of the testatrix, and she cannot be supposed to have contemplated the failure of the gift to him by lapse". He remarked that T, as every testatrix does, would have presumed that the persons who were to take under her will would survive her. It was held that there was no implication of a gift over to the children and T died intestate.
22. Mr Holmes submits that this case can be distinguished on the basis that the principal gift did not lapse: Edwin and Enid survived Victoria and the gift did not lapse in the strict sense.
23. That was the reasoning applied in Re Bowen [1949] Ch 67. The testator, T, left his estate to his mother, M, for life and thereafter to his uncle, E. In the event of E dying in M's lifetime the testator directed that the estate should pass to E's children. M died before E, who both died before the testator. The crown claimed the estate as bona vacantia. E's children sought to rely on the rule in Jones v Westcomb. Wynn-Parry J distinguished Re Graham on the basis that unlike the gift to H the gift to E was not conditional. At page 71 he stated,

"It becomes necessary, therefore, to consider in the light of the will and the relevant circumstances what was the real contingency which this testator contemplated when making the gift to the children of Evan Bowen. In the present case the relevant circumstances are these: The testator's only next of kin was his mother and, apart from her, it appears that his nearest natural relations were his uncle, Evan Bowen, and his uncle's children. He appointed two of these children, including the defendant, to be executors of his will. By his will he gave a life interest only to his mother, and after her death he gave his estate (charged with the payment of certain legacies) to his uncle. The gift to the uncle was not conditional. He then proceeds as follows:

"In the event of my said uncle Evan Bowen dying in my mother's lifetime then I give my said real and personal estate subject to and charged as aforesaid to his children as tenants in common in equal shares."

It was contended for the defendant that the words "in my mother's lifetime" were introduced simply as a measure of the life interest of the mother, and that the plain intention of the testator was that the uncle's children should take if the uncle was dead at the date of distribution.

Putting aside for the moment In re Graham which is relied on by the plaintiff, I feel no difficulty in applying the test adopted by Romer L.J. in In re Fox's Estate 12 in the present case. If the testator had been asked what was to happen to his residuary estate if the uncle was alive at the death of the mother, but had died in the testator's lifetime, I think he would unhesitatingly have said: "Then, of course, the children are "to take.""

24. For completeness Mr Holmes also referred me to Re Bailey [1951] Ch 407 (CA). The testatrix, T, gave her estate to her daughter, E, for life and thereafter to her sister-in-law, M. If M predeceased E the estate should pass to a nephew, G. E died first, then M and then T. So as in Re Graham the gift lapsed. N argued that he was entitled to the residue seeking to distinguish Re Graham and rely on In Re Fox. The decision of Romer J that the residue passed to the next of kin was upheld on appeal. It was held that if M had survived T she would have taken an indefeasible interest in the residuary estate, the gift failed because of lapse not the non-fulfilment of any condition imposed by the will. Evershed MR emphasised at 418 to 419 that in Jones v Westcomb and In Re Fox it was unnecessary for the court to alter the original gift but simply to expand the circumstances in which the gift over would take effect. Jenkins LJ at 421,

" it is impossible for this court to repair the imperfections which the events that actually happened have disclosed in the disposition of this testatrix's residuary estate. But it is not the function of a court of construction to improve upon or perfect testamentary dispositions. The function of the court is to give effect to the dispositions actually made as appearing expressly or by necessary implication from the language of the will applied to the surrounding circumstances of the case."

I consider that this case can be distinguished on the same basis as Re Graham.

25. It is open to me to apply the rule in Jones v Westcomb and decide in the light of the will and the relevant circumstances what Violet intended should happen to the gift over in the event that actually happened rather than the event specified in her will.
26. Violet's family unit comprised her, Charles and Edwin. So far as I am aware she had no other close family or next of kin. Violet and Enid met in the 1920's becoming close and life-long friends. Enid was a bridesmaid at Violet's wedding to Charles. When Enid travelled to England she spent time with Violet and her family. In 1959 she stayed with them at their home in Mottisfont. Enid chose Violet to be Victoria's godmother. In Violet's will she made a contingent bequest of her jewellery and clothing to Enid and in the event of Enid's death before Violet to Victoria. I am satisfied that had Violet been asked what should happen to the residue if Enid died before Edwin and he had no children she would have said that it should be left to Victoria.
27. I therefore conclude that Violet must have intended the gift over to take effect in the event which actually happened, that Enid predeceased Edwin. By implication clause 5 is to be read to include Enid predeceased seeing Edwin.
28. For completeness a further argument was set out by Mr Lewison. He submits that I do not need to consider whether the gift to Enid was vested or the gift over to Victoria is saved by the application of the rule in Jones v Westcomb. If the gift to Enid were contingent, a contingent right is capable of being disposed of by will: Wills Act 1837, section 3. The only qualification he submits to that is that a contingent interest is not transmissible if it is an essential part of the contingency that the person interested must have been existence when the contingency happens: In Re Cresswell (1883) 24 ChD 102. Here he argues the only central condition was that Enid should survive Violet, there was no similar condition that she should survive Edwin. Enid's last will, save for two small bequests, left her estate to Victoria. Mr Holmes considered that this might be arguable.
29. I have not seen a copy of Enid's will. I presume that the will was made in the Republic of South Africa as that is where Enid and her family lived. Presumably Enid's domicile, even if not of origin, may have been South Africa. I do not know if that will or another will specifically dealt with any estate in England. Rule 156 in Dicey, Morris and Collins Conflict of Laws, 15^th edition, volume 2, provides that, "The will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary, this is presumed to be the law of his domicile at the time when the will is made." Whilst a gift of immovables is governed by the law of the country where the immovables are situated (rule 155), here the interest is in Violet's residuary estate.
30. There is too little information before me to determine whether this argument would have been open to Victoria to argue. However, given my conclusion that Violet's will included by implication the gift over to Victoria in the event of Enid predeceasing Edwin it is not necessary for me to consider this further. I would note though that the correct sequence of analysis is to construe Violet's will first before determining whether the contingent interest in that will was capable of transmission under Enid's will and then did so pass.

The second issue – what further steps should the claimants take to ascertain the extent of the interest of Charles's estate in the residue of Violet's estate?

31. Given my findings in relation to the first issue this no longer arises as an issue. Violet's residuary estate passes to Victoria.

The third issue - to whom should the claimants pay sums due to Romsey Cottage Hospital?

32. Clause 5 of Charles' will provides that the remainder of the residue on Edwin's death should be divided into three parts: the first part to be divided equally between the Romsey Cottage Hospital and the Blandford Hospital, so each receives a 1/6 share.
33. By letter dated 12 December 2016 KF wrote to the 3^rd Defendant asking them to confirm that the hospital known as Romsey Community Hospital is Romsey Cottage Hospital under a different name: KF could find no details of a cottage hospital. When I queried at the hearing whether there had been any contact by the 3^rd defendant I was told that KF had received a telephone call on 21 December 2016. I was provided with KF's attendance note. This recorded a telephone call "from Southern Health NHS Trust which represented Romsey Hospital", it does not record the identity of the person making the telephone call, albeit refers to him in the male gender. He confirmed that Romsey Cottage Hospital had been in existence possibly since the 1800's and performed similar functions to the Romsey Community Hospital. The representative from the 3^rd defendant said that a letter would be sent confirming the position with the Romsey Cottage Hospital either before Christmas or certainly by the first week of January. Thereafter there has been no further communication from the 3^rd defendant.
34. Mr Holmes has confirmed that the claimants considered some research by Portsmouth University which carried out a spatial and temporal analysis of British and Irish voluntary hospitals between the 1890s and 1940s. That research, available on the internet, suggests that Romsey Cottage Hospital was founded in 1897 and continued in existence until at least 1944 under the name of Romsey & District Hospital. The site was developed at some stage but that does not mean that the functions of the hospital ceased. Given that there is an NHS hospital in the locality and that it appears to be the only hospital in Romsey it is likely that the functions carried out by the Romsey Cottage Hospital and then the Romsey & District Hospital were transferred to the new location. If the hospital continued to exist until 1946 then it would have been absorbed into the national health system by the National Health Service Act 1946.
35. It is unhelpful that the 3^rd defendant has not engaged in these proceedings. Mr Holmes submits that it is open to me to infer from the similarity of name and geographical location that the Romsey Community Hospital is on the balance of probabilities the same institution as the Romsey Cottage Hospital. Whilst some cottage hospitals exist to the current day Mr Holmes submits that "cottage" usually denotes a hospital which pre-dates World War II and this is consistent with the internet research carried out by the claimants. I note that it was Charles' testamentary wish that the Romsey Cottage Hospital should receive a 1/6 share of the remainder of his residue. All of the remainder in clause 5 was to be divided and paid to charities. Clause 2 provided that Charles' freehold property be sold and divided between charities: one part to St Bartholomew's and St Mark's Hospital and the other part to the Chest Heart and Stroke Association.
36. On balance I accept Mr Holmes' submissions and infer from the available evidence that Romsey Community Hospital is the same or subsumed the charitable functions of Romsey Cottage Hospital. Having had the benefit of detailed submissions from Mr Lewison in respect of the structure of the National Health Service and the holding of property, albeit in the context of the 4^th defendant, I am satisfied that the claimants should pay the sums due to the Romsey Cottage Hospital to the 3^rd defendant.

The fourth issue – may the claimants pay the sums due to Blandford Hospital to the 6^th defendant?

37. By letter dated 21 December 2016 Mary Bone, Assistant Financial Accountant Charitable Funds, at the 6^th defendant wrote to KF and confirmed the history of the Blandford Hospital. The Blandford Cottage Hospital opened in 1883 and moved to its current site in 1888. Since then it has been the only hospital in Blandford and is known as Blandford Community Hospital or Blandford Hospital. That hospital was part of Dorset Primary Care Trust but since 2011 has been part of the 6^th defendant.
38. I am satisfied on the evidence and direct that the claimants should pay the sums due to the Blandford Hospital under clause 5 of Charles' will to the 6^th defendant.

The fifth issue – may the claimants pay sums due to Mottisfont Church to the Parochial Church Council of the Parish of Mottisfont?

39. Clause 5(iii)(b) of Charles' will provides that one-third of the remainder of the residue is to be paid "to the Church of the Parish of Mottisfont Hampshire".
40. The Reverend Corne has filed a witness statement dated 11 September 2017 which sets out the history of the parish church in Mottisfont, St Andrew's. The church was built on the site in 1250 and public worship has been continuous there since that time. Gifts to the church are received and held by the Parochial Church Council of the parish. He has also set out the connection between the Hamblen-Thomas family and St Andrew's church. The Hamblen-Thomas family owned and occupied Mottisfont House until 1968 or 1969, which was the former rectory and was situated next to St Andrew's church. Charles donated the funds for the Lych Gate at the entrance to the churchyard and there is a plaque attached to the gate recording this. Violet and Charles were buried in the churchyard and there is a double headstone to them.
41. I am satisfied on the evidence that the claimants should pay the gift under clause 5(iii)(b) to the Parochial Church Council of the Parish of Mottisfont.

The sixth issue – to whom should the claimant pay the one-third share of the residue given under Charles' will to St Bartholomew's Hospital

42. Under clause 5(iii)(c) of Charles' will the third part of the remainder of his residue was,

"to be paid to the proper officer of St Bartholomew's Hospital so that it can be used for the benefit of the Maternity Ward first to continue the existing practice of distributing to each mother a verse card in memory of my late wife and secondly with any residue for the purchase of an item of general use in connection with the Children's Unit such item to be purchased in memory of my late wife"

43. This gives rise to two discrete issues: firstly, who should the gift to St Bartholomew's Hospital be paid to; and secondly, whether the words are to be read as conditional and importing a trust or are merely precatory.
44. Mr Lewison in very detailed submissions set out why the 4^th defendant is the proper officer of St Bartholomew's Hospital. He started by submitting that a gift made to an unincorporated association is for the purposes of the unincorporated association, unless it is a condition of the gift that the association is in existence when the gift takes effect. He relied on Re Vernon's Will Trusts [1972] Ch 300. In that case a testatrix made a gift to "the Coventry Crippled Children's Guild". When she made the will on 4 February 1937 there existed the "Coventry and District Crippled Children's Guild" formed under the Companies Act 1929 to take over an unincorporated body of the same name. The vesting provisions of the National Health Service 1946 came into effect on 5 July 1948. On 30 May 1952 the name of the guild was struck off the register of companies and the company dissolved. There was no issue that the unincorporated Guild or the Incorporated Guild were anything other than charitable bodies. At page 302G Buckley J said,

"It is, in my judgment, perfectly clear that when using the words "Coventry Crippled Children's Guild" in her will the testatrix intended to refer to some institution or body which she then believed to exist and to answer to that name. I feel no doubt whatever that the body she meant to describe was the incorporated guild and that in using the name which she did in the will she was guilty of a mere misdescription."

45. At page 303C-F,

"Every bequest to an unincorporated charity by name without more must take effect as a gift for a charitable purpose. No individual or aggregate of individuals could claim to take such a bequest beneficially. If the gift is to be permitted to take effect at all, it must be as a bequest for a purpose, viz., that charitable purpose which the named charity exists to serve. A bequest which is in terms made for a charitable purpose will not fail for lack of a trustee but will be carried into effect either under the Sign Manual or by means of a scheme. A bequest to a named unincorporated charity, however, may on its true interpretation show that the testator's intention to make the gift at all was dependent upon the named charitable organisation being available at the time when the gift takes effect to serve as the instrument for applying the subject matter of the gift to the charitable purpose for which it is by inference given. If so and the named charity ceases to exist in the lifetime of the testator, the gift fails: In re Ovey (1885) 29 Ch.D. 560. A bequest to a corporate body, on the other hand, takes effect simply as a gift to that body beneficially, unless there are circumstances which show that the recipient is to take the gift as a trustee. There is no need in such a case to infer a trust for any particular purpose. The objects to which the corporate body can properly apply its funds may be restricted by its constitution, but this does not necessitate inferring as a matter of construction of the testator's will a direction that the bequest is to be held in trust to be applied for those purposes: the natural construction is that the bequest is made to the corporate body as part of its general funds, that is to say, beneficially and without the imposition of any trust. That the testator's motive in making the bequest may have undoubtedly been to assist the work of the incorporated body would be insufficient to create a trust."

46. It was held that the bequest was a simple bequest to the incorporated guild. Had the guild not been a charitable body the gift would have lapsed on the dissolution of the guild during the lifetime of the testatrix. However, the guild was incorporated for exclusively charitable purposes. Even if the purposes of the charity ceased to exist its funds would be applied cy-près. Indeed, the charity would only cease to exist if its assets were exhausted and its activities ceased. The true construction of the gift was that it was in augmentation of the funds of the incorporated guild. The bequest took effect at the death of the testatrix in favour of the first defendant who was then conducting the charity functions that had been carried out in unbroken continuance since the testatrix made the will.
47. In the case before me St Bartholomew's Hospital is not an incorporated body but the provision of the hospital is one of the functions of the 4^th defendant. Mr Lewison traced the statutory framework from the National Health Service Act 1946 to the National Health Service Act 2006 ("the 2006 Act"), section 25, which establishes the National Health Service Trusts. Schedule 4, paragraph 1 of the 2006 Act provides that an NHS trust is a body corporate. Schedule 4, paragraph 14 of the 2006 Act permits an NHS trust to accept gifts of property, including property to be held on Trust, either for the general or any specific purposes of that trust or for any purposes relating to the health service.
48. The 4^th defendant was established by The Barts Health National Health Service Trust (Establishment) and the Barts and The London National Health Service Trust, the Newham University Hospital National Health Service Trust and the Whipps Cross University Hospital National Health Service Trust (Dissolution) Order 2012 SI 796, article 2. The 4^th defendant's functions "shall be to provide goods and services, namely hospital accommodation and services, community health services, for the purposes of the health service", article 3 of SI 2012/796.
49. I am satisfied on the detailed evidence set out by the 4^th defendant and supplemented by Mr Lewison's submissions that the 4^th defendant is entitled to the gift under clause 5(iii)(c).
50. Turning to the second issue, St Bartholomew's Hospital is now a specialist cancer and cardiac centre. It no longer operates a maternity ward nor a children's unit. Mr Lewison submits that this is no bar to the 4^th defendant taking the gift because the words in clause 5(iii)(c) are permissive rather than mandatory.
51. Although I was not referred to Marley v Rawlings [2014] UKSC 2, the propositions are uncontroversial. Lord Neuberger at paragraph 20 said,

"When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context."

52. The task of the court is therefore to ascertain what the testator expressly intended by the relevant word or phrase in his will and in the light of all the admissible evidence. What the court cannot do is to rewrite the will and is simply tasked with construing the testator's will. Words are to be given their natural and ordinary meaning. However, a word may need to be construed in its context, whether as part of a phrase or sentence, so that its true meaning can be discerned. Lord Neuberger helpfully summarised the task in paragraph 19 of Marley v Rawlings as,

"When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions."

53. In Charles' will both parts of the gift in clause 5(iii)(c) are subject to the words "so that it can be used for" which show a motive for making the gift rather than being consistent with the imposition of a trust. I accept the analysis that the word "can", when placed in its context, is an enabling word rather than a mandatory word.
54. Mr Lewison submits that his construction of Charles' will is supported by the lack of any specific direction both in relation to distributing a verse card which he submits has no limit as to time, frequency or expenditure and in relation to the purchase of an item of general use which is to be taken from "any residue". Whilst I do not accept that there is no limit in time or frequency, it would be permissible to imply that the verse card would be provided following confinement of the mother and whilst she was in hospital, I do agree that there is a lack of specificity. Further the clause uses the phrase "to continue the existing practice" but does not make any provision if such a practice was discontinued. Moreover "any residue" acknowledges that the provision of verse cards may exhaust any funds. All of which support the exercise of a discretion rather than the imposition of a condition. I also consider that this analysis is consistent with clause 5(iii)(b) and whilst the language is different in that the precatory word "wish" is used it conveys a discretion on the recipient.
55. I am satisfied that Charles' will can be read in its ordinary and natural sense so that clause 5 (iii)(c) confers a discretion on the recipient of the gift. That reading is sensible with respect to the supporting circumstances and gives effect to Charles' intention as expressed in the words of his will. In so far as I need to go further I consider that analysis is supported by reading the will as a whole, by considering Charles' intention to benefit named charities and by the words used being those for guidance rather than the imposition of a binding obligation as to the application of the gift.
56. I therefore conclude that the gift under clause 5(iii)(c) does not fail as a result of the closure of the maternity ward and children's unit and should be paid to the 4^th defendant.
57. Mr Lewison also made submissions on a default position had I found that the gift to St Bartholomew's Hospital imported a trust that failed. Out of consideration for his detailed analysis I will go on to consider this position. He argued that the rule in Lassence v Tierney, also known as the rule in Hancock v Watson, would save the gift and do so without applying a cy-près scheme. The rule provides that an absolute gift to a legatee which restricts the mode of the legatee's enjoyment of it to secure certain objects for the benefit of the legatee still takes effect even though the objects fail. However, if there is no absolute gift and the prescribed modes of enjoyment of the gift fail then the gift fails and forms part of the testator's estate.
58. In Re Monk [1927] 2 Ch 197 a testator gave a life interest to his widow and bequeathed his residuary estate to charity trustees upon trust: to set aside 800l as a coal fund, the income of which was to be used to purchase coal and to be distributed by a committee among the poor and needy inhabitants of Foxton; and to hold the rest as a loans fund to be applied under the direction of a committee in making loans to poor and deserving inhabitants of Foxton. Foxton was a small parish, 3 ½ miles from Market Harborough, with a population of 400. No loan was to exceed 100l, it was to be repayable within 9 years and various other conditions were attached to the distribution of loans. His widow died and the value of the testator's estate had increased to 20,000l. The testator's next of kin argued that there was no prospect of the qualified borrowers exhausting the loan fund and that in the absence of any general charitable intention there was an intestacy in respect of the unrequired surplus. It was held that the will displayed a general charitable intention (to relieve the poor of Foxton) and there was an immediate and effective gift of the whole of the residue to charity.
59. At page 204 Lord Hanworth MR identified two categories of cases,

"The authority of the judgment of Parker J. in In re Wilson is invoked, where he defines broadly two categories into which the cases decided may be divided. The first where "it is possible, taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention, according to the true construction of the will, is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect." In such cases, even though the precise directions cannot be carried out, the gift for the general charitable purpose will remain, and be perfectly good, and the doctrine of cy-près applied. The other category is, "where, on the true construction of the will, no such paramount general intention can be inferred, and where the gift, being in the form a particular gift, - a gift for a particular purpose - and it being impossible to carry out that particular purpose, the whole gift is held to fail." "

60. At page 205 he accepted the distinction to be drawn between the two cases as follows,

"It has been suggested, and I accept the suggestion, that the best principle on which such distinctions can be logically based is that when the gift can be read as devoting the property to charity and adding a condition subsequent to the gift, then, if the performance of the condition becomes impossible, the gift becomes absolute: whereas if the condition is precedent to the gift, and the condition becomes impossible, the gift fails altogether."

61. Tudor on Charities (10^th Ed) at 19-007 comments that where the engrafted trust fails but the absolute initial gift was for charitable purposes and that gift remains then a cy-près scheme would not be required.
62. It is self-evident that in order for the rule in Lassence v Tierney to apply I must determine that the gift to St Bartholomew's Hospital was an absolute gift which is then cut down by subsequent provisions.
63. Clause 5 is drafted in such a way that the residue of Charles' estate after payment of debts and expenses and pecuniary legacies provides an income for life to Edwin and then is divided into three parts and paid by the trustees to identified people or entities. Sub-sub-clause (c) provides that the final third is "to be paid to the proper officer of St Bartholomew's Hospital". Construing Charles' will as a whole I am satisfied that Charles segregated the remainder of his residue of his estate into three parts and that each part was then an absolute gift to the entity and/or persons identified. It then follows that the conditional words in clause 5, had I found them to give rise to a trust, would have been engrafted onto the gift so the fact that there is no maternity ward or children's unit at the hospital does not cause the gift to fail.
64. Can I construe clause 5(iii)(c) for a general charitable purpose rather than for a particular purpose? Charles' will is almost entirely concerned with charitable gifts; the pecuniary legacies in clause 5(2) were relatively modest. Clause 2 provided an absolute gift of the proceeds of his freehold property to St Bartholomew's Hospital and to the Chest Heart and Stroke Association. Clause 5 provides an absolute gift to the proper officer of St Bartholomew's Hospital followed by directions to apply the gift for the purposes of the maternity ward and children's unit. The general charitable purpose can also be discerned from the wording of clause 5 itself, "so that it can be used for the benefit of the Maternity Ward … ".
65. Had it been necessary for me to determine the second part of the sixth issue on this alternative basis I would have accepted that the gift was an absolute gift to St Bartholomew's Hospital and that it was for charitable purposes. The rule in Lassence v Tierney would have saved the gift and it would have been unnecessary to apply a cy-près scheme.
66. If the claimants have any further questions arising out of this judgment I will list the matter for a short hearing otherwise the parties should submit an order for my approval.