[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McGee v. A.G. [2002] IEHC 87 (25 July 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/87.html Cite as: [2002] IEHC 87

[New search] [Printable RTF version] [Help]

THE HIGH COURT

RECORD NO. 377/2000 Sp

IN THE MATTER OF THE CHARITIES ACT 1961-1973

AND IN THE MATTER OF SECTION 47 OF THE ACT OF 1961

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 51 OF THE ACT OF 1961

BETWEEN

MOST REVEREND JOHN MAGEE AND

VERY REVEREND ST. JOHN DEAN THORNHILL

PLAINTIFFS

AND

ATTORNEY GENERAL

DEFENDANT

Judgment of Mr. Justice Vivian Lavan delivered the 25^th day of July, 2002.

1.      These proceedings arise out of an application by the plaintiffs to have the proceeds of sale of trust property applied cy-pres. The plaintiffs are trustees of a trust declared by a deed of conveyance executed in 1892. The defendant is responsible for enforcing charitable trusts and is being sued as the custodian of charities.

2.      The plaintiffs seek the following reliefs pursuant to Section 51 of the Charities Act, 1961:

1. An order identifying the beneficiaries under the said trust. The benefit in question is the provision of a primary Catholic education for local male Catholics in Youghal. It is to be noted that charitable trusts are not subject to the same requirements relating to certainty of objects as private Trusts are. What is required is that the class must be defined with sufficient certainty to enable the trustees, or the court, to determine theoretically whether any given individual is or is not a member of that class.

2. A direction as to whether the said trust may be regarded as having been made by gift and if so identifying the donor of such gift.

3. A determination as to who are the present objects of the said trust.

4. A direction as to whether it may be appropriate to assume that the purpose for which the said trust was established have been accomplished or substantially met.

5. A direction as to whether it is appropriate that a scheme should be framed pursuant to Section 47 of the Charities Act, 1961 and, if so, the terms of which the said scheme should be framed: that is whether the residue of the donors gift is applicable cy-près.

6. A direction as to the application of the proceeds of sale of the trust property and as to whether the trustees are at liberty to utilise such proceeds in accordance with proposals outlined in the affidavit supporting the plaintiffs case.

7. Such further and other directions as may be thought fit.

3.      The plaintiff’s in the present case contend that the original purposes of the charitable trust in question have been fulfilled as there is adequate schooling for Catholics in the Parish of Youghal. They therefore seek to have the proceeds of sale of the remainder of the trust property applied cy-près in an effort to discharge part of the Parish debt. The Attorney General objects to this as it is felt that the proceeds of sale should continue to be used for educational purposes which is closer to the intention of the donor.

4.      The Law: where a gift is made to charity, it may turn out to be impossible or impracticable to give effect to the intentions of the donor in the precise terms which he intended. By virtue of the cy-près doctrine, where a donor discloses a clear intention to make a charitable gift, either in a deed of conveyance or in a will, which subsequently turns out to be impossible to execute, a scheme may be made for the application of the property for other charitable purposes as near as possible to those intended by the donor. As Meredith J. stated in Governors of Erasmus Smith’s Schools -v- Attorney General (1931) 66 I.L.T.R. 57, at p. 61:

“Courts of Law adapt the statement of a charitable intention to suit altered circumstances and conditions with a view to giving effect to the real intention. Donors cannot be expected to provide expressly for more than the world and the times with which they are familiar.”

5.      At common law there can be no question of an application cy-près until it is clearly established that the purpose of the donor cannot be carried into effect (Attorney General -v- Boultbee (1794) 2 ves. 380, at p. 387). This area is now governed by Section 47 of the aforesaid Act of 1961 which allows a cy-près order to be made in circumstances where there were difficulties in implementing the original terms or where more effective use might be made of the trust property by framing an alternative scheme. I note that although Section 47 aforesaid has caused substantial inroads to be made into the restrictive common law approach to the cy-près doctrine, it is still desirable and necessary to have due regard for the wishes of the donor so as to avoid the threat of making the practice of donating to charity a veritable shot in the dark.

6.      Where the intention of the donor is perpetual and has been carried into effect but ceases to be practicable, there is the option of a cy-près application. For example, where property has been given out to a particular charitable institution and the gift takes effect when the institution thereafter comes to an end, the property, belonging to the charity, will be applied cy-près. The courts involvement with cy-près applications normally only arises in the context of administering a charitable trust where the donor has not identified the way in which the trust fund is to be applied.

7.      According to Halsbury’s Laws of England (third edition, 1953) where the donor has specified a particular mode of application and that mode becomes incapable of being performed, the court can proceed as if the direction had never been expressed at all but only where the donor had a general charitable intention which transcended the particular mode of application prescribed. Conversely, in circumstances where the particular mode of application specified in the trust is the entire essence of the donors intention, then the Court has no power to direct any other charitable application in place of that which has failed. Assessing whether or not the particular mode of application is the essence of the donors intention may be facilitated by an examination of the language of the donor and or any special terms or conditions mentioned in the trust.

8.      In seems to me that the primary rule to be observed in the application of the cy-près doctrine is that the intention of the donor must be observed as far as possible and regard must be had to the spirit of the gift. Thus, if the donor names a particular object which is capable of taking effect, any application cy-près that becomes necessary must be restricted within the limits of that object. The mode of application must as far as possible coincide with the donor’s wishes. Thus objects which are very near the donors intention will always be selected in preference to those more remote.

9.      In certain circumstances surplus funds may remain where a charitable purpose has been completed or where full provision has been made for its requirements and provided that it is an absolute and perpetual gift to charity, these funds may be applied cy-près. See the case of The Trusts of the Rectory of St. John (1869) I.R. 3 Eq 335. There a surplus remained after providing for the maintenance of the choir and choral service at the Cathedral Church in Cork City as required by the terms of the trust. Chatterdon V.C. held that as part of these monies was not required for the fulfilment of the donor’s intentions, some of the funds might be applied cy-près in the purchase of an organ for the church, a purpose which was essential for the carrying into effect of that intention.

The legal submissions of the Plaintiff’s:

10.      The property the subject matter of this application is property that was vested in the plaintiffs and their successors in office for and on behalf of the Catholic parishioners of Youghal. It is in a very real sense Church property even though it was acquired for and devoted to a particular purpose. That purpose is identified in the deed of the 15th September, 1892. However although the primary purpose of the acquisition is so identified this is not a purpose imposed upon the property by any donor. It was a purpose stipulated by the trustees themselves and it was a purpose designed to meet a perceived need. The reality therefore was that this property was the property of the Parish and like all Church property of a similar nature could be used by the Parish to meet its needs and the needs of its parishioners. It is in that regard no different from virtually all of the property of the Catholic Church in Ireland. It is therefore mischievous to treat this Application as if one was endeavouring to ascertain the wishes of the original Donor and to apply those wishes to the requirements of the 21st century. Such an exercise is unreal.

11.      Insofar as the deed identified the purposes and insofar as they constitute a charitable trust then those purposes have the following characteristics:

(a) they were to benefit Catholics;

(b) they were to benefit local Catholics of Youghal;

(c) they were to benefit local male Catholics in Youghal;

(d) in particular, the benefit to such persons was the provision of primary Catholic education. That provision was not available to them when the trust was established.

12.      Insofar as the educational element of the trust was concerned, it is the case that the purpose has been fulfilled in that male Catholics have a choice of schools enabling them to obtain primary education in Youghal. That particular need has therefore clearly been met.

13.      The Attorney General appears to be of the view that the citizens of Youghal do not have adequate educational facilities and that some enquiry should be made so as to ascertain whether or not the existing facilities are in fact adequate. That exhortation should be addressed to the party responsible for providing such facilities, to wit, the State. Insofar as this particular Church property is concerned, the Parish has established that the need has been met but that there are other purposes to which the property [or the proceeds thereof] can be devoted. These purposes are manifestly beneficial to parishioners and other citizens of Youghal and this is why they were provided by the Catholic Parish. However as a result of such provision the Parish is indebted and this indebtedness can only be repaid by voluntary contributions from parishioners. Since these funds are now regarded as surplus to the immediate requirements of the Parish, it is entirely prudent that they should be released so as to reduce the debt.

14.      Not merely is the Attorney General endeavouring to impose a burden upon the Parish which is by law imposed upon the State but he is also endeavouring to expropriate property that is strictly speaking the property of the Parish. In both instances he is acting contrary to the Constitution of Ireland.

THE CONSTITUTION:

15.      Article 42.4 provides as follows;

“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents especially in the manner of religious and moral formation.”

16.      The existence of this duty was recognised by the High Court and the Supreme Court in Crowley -v- Ireland [1972] I.R. 241, [1981] I.R. 102.

17.      It obviously follows that neither the Catholic Church nor any other private organisation can be impelled to provide any educational facilities save by agreement.

18.      Particular provision is made for religious property in Article 44.2 of the Constitution. Article 44.2.5 provides as follows;

“Every religious denomination shall have the right to manage its own affairs own, acquire, and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.”

Article 44.2.6 is in the following terms;

“The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”

19.      The Attorney General is endeavouring to insist that the property of the Church should be administered in a particular manner and is directly contravening these provisions. Furthermore in requiring that the funds of the Parish be diverted for non-Parish purposes he is in effect directing the expropriation of Church property.

20.      The constitutional duty of the State to provide education has now found a statutory basis in the Education Act, 1998 and the entire tenor of the Act makes clear that all schools are to be funded from monies provided by the Oireachtas.

THE CHARITIES ACT, 1961:

S.51 of the 1961 Act is in the following terms;

“(1) In every case of a breach or supposed breach of any trust for charitable purposes or whenever the direction or order of the High Court is considered necessary for the administration of any trust for charitable purposes the Board or, with the consent of the Attorney General any person may apply to the Court for such relief as the nature of the case may require and the Court may make such order thereon as the Court thinks fit.

(2) Where any of the circumstances specified in subsection (1) of Section 47 exists in relation to a charitable gift which is the subject of an application under this section, the Court may if it thinks fit, on such application, frame a scheme for the application cy-près of the property comprised in the charitable gift.”

Accordingly if in the course of an application for directions the court should conclude that the property should be applied cy-près then it can do so under this Action.

21.      The occasions for applying property cy-près are set out in s.47 of the 1961 Act.

“(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:-

(a) where the original purposes, in whole or in part -

(i) have been as far as may be fulfilled; or

(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift; or

(b) where the original purposes provide a use of part only of the property available by virtue of the gift; or

(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or

(d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased, either to be suitable, regard being had to the spirit of the gift or to be practical in administering the gift; or

(e) where the original purposes, in whole or in part, having since they were laid down -

(i) been adequately provided for by other means; or

(ii) ceased, as being useless and harmful to the community or for other reasons, to be in law charitable; or

(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.

(2) Subs. (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except insofar as those conditions require a failure of the original purposes.

(3) References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.

(4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.

(5) This Section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.”

22.      If the property is to be regarded as the subject matter of a charitable gift then it is clear that there is scope for a scheme to be framed under this section. It will be noted that the section allows a scheme to be framed inter alia where the original purposes have been as far as may be fulfilled in whole or in part. Even the Attorney General concedes that the purposes have at least ceased in part.

23.      We will, if necessary, refer to Re Royal Kilmainham Hospital [1966] I.R. 451 and Re Worth Library [1995] 2 I.R. 301. [See also Delany, Equity & The Law of Trusts in Ireland, p. 306].

Submissions on behalf of the Attorney General:

24.      These proceedings concern certain properties in Strand Street, also known as Marine Terrace, in the town of Youghal. The properties were formerly a Christian Brothers Monastery. Adjoining them is a school, in which the Christian Brothers taught for many years. The school was sold to the Minister of Education in November, 1996 and it is now proposed to sell the former Monastery as well, this time for development.

25.      The Monastery is held pursuant to a deed of conveyance, re-conveyance and appointment of trustees dated 15th September, 1892. The trustees are the Parish Priest and the Bishop of Cork.

26.      The deed of 1892 deals with a number of properties, and sets out the trusts upon which the various properties were held. So far as relevant to the Monastery, the Deed of 1892 provides that the properties comprising the Monastery are to be held:-

“ ... IN TRUST for the Roman Catholic Parishioners of the said Parish of Youghal forever the rents, issues and profits to be used and applied for providing free education for the Poor Roman Catholic Male Children of said parish of Youghal under the joint control, direction and management of the persons who shall be successively Roman Catholic Bishops of the Dioceses of Cloyne and Roman Catholic Parish Priests of the Parish of Youghal ...”.

27.      The plaintiffs contend that insofar as the trust is educational, its purposes have been fulfilled, and seek to have the proceeds of the sale of the properties applied cy-près, to the reduction of the Parish debt.

28.      Two basic issues arise:

(a) Are the circumstances such as to make it appropriate to apply the property cy-près?

(b) If so, is the proposed scheme sufficiently close to the original objects?

CY-PRÈS OCCASION

29.      As protector of charities, the Attorney General must be satisfied that a cy-pres occasion exists before he can support a cy-pres scheme. Section 47(1) of the Charities Act, 1961 sets out “the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-pres.”

30.      The nub of the plaintiff’s case on this aspect is as follows:-

(a) that the two Catholic primary schools in the Parish are entirely adequate to meet the education requirements of the parish. Both premises are in excellent condition;

(b) as a result of the earlier scheme framed by the Charity Commissioners, a sum of over £92,000 is available for any requirements. Even if both schools had to be rebuilt, which the plaintiffs suggest is inconceivable, the maximum contribution per school to be raised by the Parish would be £50,000 under the present Department of Education Regulations;

(c) there are two other primary schools in the parish namely a Gaelscoil and a primary school for Protestant children known as South Abbey National School. The plaintiffs maintain that the parish has no responsibility for either of these schools.

31.      The plaintiffs have based their case on the argument that, insofar as the trust is educational, its purposes have been fulfilled. It is submitted that this approach is incorrect, in that it cannot be said that there will never again be any poor Roman Catholic male children in need of primary education.

32.      By letter dated 2nd March, 2000 from the Office of the Attorney General to John L. Keane & Co., the solicitors for the plaintiffs, the point was made;-

“I don’t see how you can determine whether the educational needs of each school in the parish have been met without inviting each school in the parish to identify what needs, if any, they have which have not been met and which could not be met out of the earlier cy-près scheme.”

33.      The plaintiffs have declined the suggestion from the Attorney General's office that the views of the schools in the area should be ascertained, apparently on the grounds that education is no longer the responsibility of the Parish but of the Minister for Education.

34.      It is submitted that the increasing involvement of the State in primary education does not of itself mean that a cy-près occasion exists in respect of all trusts relating to primary education. It cannot be said that the use of non-state funds in relation to primary education is contrary to, or inconsistent with, the constitutional and statutory scheme now in place.

35.      Even at the time of the trust deed, the concept of free primary education was known. The trust deed was made in September, 1892. Earlier that year, the Education (Ireland) Act, 1892 was passed. While largely devoted to compulsory school attendance by children between six and fourteen, it is interesting to note that Section 18 of the Act prohibited the charging of fees by certain “elementary” schools and placed limits on the fees which could be charged by other elementary schools.

36.      Accordingly it is submitted that the plaintiffs have erred in declining the suggestion from the Attorney General’s office to investigate further the needs of local schools, and have failed to offer sufficient information to establish that a cy-près occasion exists.

APPLYING THE PROPERTY CY-PR ÈS - GENERAL PRINCIPLES

37.      Assuming, contrary to the foregoing, that it is appropriate to apply some or all of the property cy-près, the question then arises as to particular method in which the property should be so applied.

38.      Delaney, The Law Relating to Charities in Ireland, revised edition, explains the doctrine of cy-près in the following terms (emphasis added):

“Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy-près, that is as near as possible to the mode specified by the donor.”

As to how that intention should be ascertained, in Governors of Erasmus Smiths Schools -v- Attorney General (1932) 66 I.L.T.R. 57, at p. 59, Meredith J. quoted Lord Eldon:-

“The question is not so much what was the intention, as what, in the contemplation of law, must be presumed to have been the intention.”

At p. 60, Meredith J. observed:

“ ... with the motive which actuated a donor to devote property to a charitable purpose the Court is not concerned, but only seeks to determine the charitable purpose intended to be furthered.”

And later:

“The paramount intention is what the Court, in applying the cy-près principle, regards as the fundamental charitable intention implied in the expressed charitable intention as a whole. The primary object and the underlying intention indicate two conceptions which are used in determining the paramount intention.”

More recently, in Re Worth Library [1995] 2 I.R. 301, at p. 343 the High Court (Keane J.) stated:

“It is desirable that the original intentions of the donor should be adhered to as far as is possible.”

39.      Some assistance may also be derived from the Charities Act, 1961. Firstly, since s. 47(1)(e) refers to the original purpose having ceased to provide a suitable and effective method of using the property, the cy-près mode should itself pass the test of “suitable and effective”, if the circumstances which permit the property to be applied cy-près are those set out therein.

40.      Secondly, Section 47(4)(4) places a trustee of a charity under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied. Again it is implicit that the cy-près mode should provide an effective use for charity.

41.      Picarda, The Law and Practice Relating to Charities 3rd ed., at pp. 392-393 suggests

“It is no doubt a good working rule that a trust which falls squarely under one particular head of charity within Lord McNaghten’s classification in the Pemsel case will only very exceptionally be diverted to another head. Indeed the only examples which have occurred and which therefore spring to mind are those cases where there has been a failure of a purpose under the fourth head and no purpose eiusdem generis can be identified. Otherwise where a trust for the relief of poverty fails the property should be and is applied to another purpose which relieves poverty, and Trusts for the advancement of education and religion are replaced by other Trusts for the purposes falling within the same category.”

APPLYING THE PROPERTY CY-PR ÈS - THE PARTICULAR CASE

42.      Applying the Pemsel classification as set out in Commissioners for Special Purposes of Income Tax -v- Pemsel [1891] A.L. 531, it is submitted that the gift in this case is best regarded as a gift for the advancement of education.

43.      The educational content of the gift is obvious, and while the education is to be provided for those of a particular religion and is to be subject to religious control, direction and management, the words of Meredith J. in Governors of Erasmus Smith School -v- Attorney General (1932) 66 I.L.T.R. 57, at p. 62, are apposite in this regard:-

“The second and only other proposition on which I find it necessary to insist is that there is no fixed rule or principle that wherever there is a provision for religious instruction, or in favour of religion, that provision must be regarded as of primary importance, or in other words, that the propagation of religion is the primary object. Religion may be made a matter of primary importance or it may not, and the question of the position intended in each particular case is one to be decided, if possible, on the construction of the instrument of foundation, extrinsic evidence as to the intention only being advisable if the instrument of foundation is ambiguous or does not provide adequate material for arriving at a decision.”

44.      It is submitted that the proposed new objects are not as close as possible to the original objects or within the spirit of the original objects. They do not provide sufficiently or indeed at all for any education element. If necessary, provision could be made for all school students in the parish - male and female, Catholic or Protestant or Gaelscoil - to benefit from educationally oriented objects.

45.      The foregoing submissions of both parties are based on the evidence adduced by Affidavit on behalf of the plaintiffs and the defendant.

The Facts:

46.      The facts of this case revolve around a former Christian Brothers Monastery in Youghal, Co. Cork. Adjoining the Monastery is a school which was sold to the Minister of Education in November, 1996. It is now proposed to sell the Monastery. The Christian Brothers community vacated the Monastery in June, 1997. Since that time the trustees have entered into a conditional contract for the sale of the premises (the Monastery).

47.      The premises were the subject matter of a Landed Estates Court Conveyance made in 1868. It is clear from the subsequent title that the property was acquired in trust for the Roman Catholic Parishioners of the Parish of Youghal. The terms of this trust are referred to in the subsequent re-conveyance and the appointment of trustees, executed in September, 1892. At that time a practice existed whereby a Priest of the Parish would take the property in his own name and, in the absence of any specific declaration of trust, in the relevant deed. The purchase money for the property would have been raised by collections or voluntary donations from parishioners.

48.      The trust under which the property is held is described in the deed of the 1892 conveyance in the following terms:

“In trust for the Roman Catholic Parishioners of the ... Parish of Youghal forever the rents ... and profits to be used and applied for providing free education for the poor Roman Catholics male children of the ... Parish of Youghal.”

49.      The trust indicates that the beneficiaries under the trust for the Roman Catholic Parishioners of the parish of Youghal and in absolute preference is undoubtedly intended to be forwarded to this class of persons. The deed then identifies the trustees of the property as the successive Roman Catholic Bishops of the diocese of Cloyne and the Roman Catholic Parish Priest of the Parish of Youghal. The trust was performed when the property was leased to the Christian Brothers who used the property to establish a primary school.

50.      The plaintiffs outline what they submit are the salient points in relation to the aforesaid trust as follows:

1. Insofar as the trust is educational its purposes have been fulfilled.

2. As a result of an earlier scheme framed by the Charitable Commissioners, the sum of £92,518 is available to meet educational requirements.

3. The parish is responsible for two primary schools. Gortroe Primary School is owned by the trustees on behalf of the Parish but the Department of Education has a lease hold interest in the property under a standard 99 year lease. Bun Scoil Mhuire is owned by the trustees of the Presentation Nuns and again the Department of Education has a similar lease. There is a Gaelscoil in the Parish but this premises is owned by the Department of Education. Although this school is owned by the Department of Education and is therefore not in the trusteeship of the Parish the Parish pays a capitation grant for the pupils attending the Gaelscoil because it is under the patronage of the Bishop. Both of the schools in the Trusteeship of the Parish are described as being in excellent condition. The Parish has no responsibility for the other two primary schools in the Parish.

4. The Parish is indebted in the sum of £497,000 (€631,059.82) arising out of a building programme commenced in or about 1990. The debt is attributable to the refurbishment of the League of the Cross Hall in Youghal, the refurbishment of Gortroe School and the erection of the Holy Family Hall. The plaintiffs submit that there is a significant educational content in the use of the League of the Cross Hall and the Holy Family Hall and they further submit that there is a general benefit to the local community arising out of the use of these properties. The League of the Cross Hall, for example, is used for educational purposes including the running of adult education courses, as well as courses for people who drop out of mainstream education. The hall is also made available for use by the local literacy group.

5. Following the sale of the Christian Brothers Primary School a cy-près scheme was devised by the Commissioners of Charitable Donations and Bequests (hereinafter called the Commissioners) to the affect that:

“The trustees shall retain the money received by them from the sale of Youghal Christian Brothers National School at Strand Street, Youghal, Co. Cork in trust with liberty to apply the income and the capital (with the prior consent of the Commissioners) strictly for educational use for all children attending Primary or Secondary Schools in the Parish of Youghal.”

51.      The trustees accepted these terms and thus the proceeds of the sale of the Christian Brothers Primary School are available to meet the general educational requirements of children attending school in Youghal. However, the terms of the scheme were accepted under protest and the trustees are unhappy with the terms.

52.      In affect, in this case, the trustees seek advice in relation to the application of the proceeds of sale of the remainder of the trust property (the Monastery). The plaintiffs refer to the property having being initially purchased with the aid of money provided by local parishioners. It is described by the plaintiffs as having being acquired “by a Catholic Parish” “out of Parish resources” “for its Catholic Parishioners”. The plaintiffs thus seek liberty to utilise the proceeds of sale of the remainder of the trust property (the Monastery) in order to reduce the Parish debt. This debt is being met by weekly contributions from the Roman Catholic Parishioners of the said Parish. The plaintiffs are of the view that due to lisation of the proceeds of the sale of the Monastery, so as to reduce the Parish debt, would be more beneficial and more in keeping with the terms of the trust than was the scheme framed by the Commissioners as aforesaid.

53.      Finally the plaintiffs submit that the educational requirements envisaged when the trust was declared in 1892 have been fulfilled in that it would be nonsensical to tie up the proceeds of sale of part of the trust property (the Monastery) under the terms of the Commissioners cy-près scheme as the money could not be put to any affective educational use in the town.

54.      On behalf of the Attorney General, Mr. Declan Moylan, submitted as follows:

That the scheme proposed by the plaintiff is not as close as possible to the original objects of the donor as it fails to have sufficient regard to the educational nature of those objects. It is also contended that the plaintiffs proposed scheme has been framed without sufficient consideration being given to the educational needs of the locality. Thus, the defendant maintains that regard must be had for the needs of the other two schools in the Parish to the extent that their educational needs have not been met. The defendant asserts that “there are always things schools need that cannot comfortably be met by current and available resources”. It is therefore proposed by the defendant that all the schools in the Parish be invited to identify what needs, if any, they have and which of these have not been met. In response to this proposal the plaintiff contends that it is the obligation of the Minister for Education to educate the young citizens of the State and not the responsibility of the Parish. Ultimately the defence considers that it is too grand a statement to make that the trust is being fulfilled and it cannot be said that there will never again be any poor Roman Catholic male children in need of primary education. Turning to the issues that have to be decided in this case let me say at the outset that in my view the Attorney General’s objections are reasonable and proper and it appears to me that they are the result of a considered view of the educational needs of the schools in the Parish.

55.      I am greatly troubled by the fact that the trustees agreed with the Commissioners to a cy-près scheme on the 18th November, 1997. That scheme concerned the sale of the Christian Brothers School. The school and the Monastery (inter alia) made up the trust assets. The school was sold by the trustees to the Minister of Education under a contract for sale made the 15th November, 1996. As a result of this an application for consent was made to the Commissioners which I shall refer to. The Christian Brothers community left Youghal in or about June, 1997. They vacated the premises and returned the keys thereof to Dean Thornhill, one of the trustees. The premises have being vacant since that time. The trustees applied to the Commissioners for consent to sale and for further permission to apply the net proceeds of this sale in reduction of the Parish debt. The Commissioners refused such application. Instead, a cy-près scheme was framed by the Commissioners in the following terms:

“The recitals of the order of the Commissioners dated the 18th November, 1997, following the usual recitals, namely that by deed of conveyance, Re-conveyance and the Appointment of trustees made the 15th day of September, 1892 between the parties therein identifies and further recited that the property upon which Youghal CBS National School, Strand Street, Youghal, Co. Cork was subsequently erected was, inter alia, conveyed to trustees in trust for the Roman Catholic Parishioners of the said Parish of Youghal forever the rents, issues and profits to be used and applied for providing free education for the poor Roman Catholic male children of the said Parish of Youghal under the joint control, direction and management of the person who shall be successively Roman Catholic Bishop of the diocese of Cloyne and Roman Catholic Parish Priest of the Parish of Youghal and such Bishop and Parish Priest shall be successively trustees of the said garden in Strand Street and the said two houses and premises in Marine Terrace.”

56.      The order further states as follows:

“And where as the property the subject matter of the trust has been sold with the consent of the Commissioners to the Minister for Education for the price or sum of £120,000 and the trustees are of the view that the strict purposes of the trust, to provide free education for the poor Roman Catholic male children of the Parish of Youghal, are no longer suitable for modern educational requirements.

And whereas Most Reverend John Magee of Cobh in the Co. of Cork Bishop of Cloyne and Very Reverend St. John Dean Thornhill of Youghal in the Co. Of Cork Parish Priest of the County of Youghal, have requested the Commissioners to frame a scheme for the application cy-près of the net proceeds of sale of the said premises.

NOW the said Commissioners by virtue of the jurisdiction vested in them by Section 29 (4) of the Charities Act, 1961 as amended by Section 8 of the Charities Act, 1973 HEREBY DIRECT that from the date hereof the said charity shall be managed and administered in accordance with the following Scheme namely:

That the trustees shall retain the money received by them from the sale of Youghal CBS National School, Strand Street, Youghal, Co. Cork intrust, with liberty to apply the income, and the capital (with the prior consent of the Commissioners) strictly for educational use for all children attending Primary or Secondary Schools in the Parish of Youghal.”

57.      I am satisfied that the cy-près scheme of the 18th November, 1997 supersedes the trust established originally and, subject to the decision of the courts, governs the disposal of the remainder of the assets of the original trust.

58.      I accept that the trustees accepted the scheme of 1997 under protest. I accept the reservation that counsel’s opinion was obtained at the time but given the economic factors in bringing the matter to the High Court, the trustees decided to accept the same. I accept that there were economic realities in bringing a sum of £120,000 before the courts bearing in mind the costs of such application. Nonetheless the trustees are bound by that agreement.

59.      There is no doubt in my mind that the Attorney General’s objections in these proceedings would be well founded against any attempt by the trustees to do other than apply the funds under that scheme strictly in accordance with the provisions thereof.

60.      It seems to me therefore, in light of the foregoing, the question is whether this court can sever the proceeds the subject matter of this application from the scheme cy-près and whether this Court may decide that the proceeds of the sale the subject matter of these proceedings can be used for the purposes now relied on by the plaintiffs.

61.      To pose the question in the following way it appears that what is needed to be resolved is whether the original proposes of the charitable gift of the property have ceased to provide a suitable and affective method of using the property and whether it is permissible to alter the cy-près scheme of the 18th November, 1997. That poses the question whether the advancement of educational facilities in all the schools of the parish is closer to the spirit of the gift than the discharge of a parish debt incurred in the pursuit of enhancing the community? Put another way, one of the issues to be answered is whether a Catholic Parish should be required to use its own resources to provide educational facilities for non-Catholics. Of further relevance is a question of whether the funds that will now become available can properly be regarded as “surplus to requirements?” It seems to me that in the search for an answer, a suitable and affective method of using the proceeds of sale needs to be found so as to continue to give affect to the provisions of the 1997 scheme as distinct from the affect of the original expressed in the 1892 Deed as being for the “Roman Catholic Parishioners”.

62.      The defendant argues that the gift in question is educational. In relation to the category into which this gift falls, it is worth noting that Lord MacNaghten’s four categories as set out in Commissioners for Special Purposes of Income Tax -v- Pemsel [1891] AC 531, at 583 are not generally regarded as being mutually exclusive. These categories are as follows:

1. Trusts for the relief of poverty.

2. Trusts for the advancement of education.

3. Trusts for the advancement of religion.

4. Trusts for other purposes beneficial to the community.

63.      When considering the submissions made on behalf of the defendant in the instant case that the plaintiff’s proposed new objects do not provide “for any educational element”, it is noteworthy that in Re Worth Library [1995] 2 I.R. 301, at p. 337, Keane J. as he then was, made the following general observation as regards the nature of education:

“Gifts for the advancement of education would embrace, not merely gifts to schools and universities ... “education” has been given a broad meaning so as to encompass gifts for the establishment of theatres, art galleries and museums and the promotion of literature and music. In every case, however the element of public benefit must be present and, if the benefit extends to a section of the community only, that section must not be numerically negligible.”

64.      I also note the opinion expressed in Re Shaw’s Will Trusts [1952] Ch. 163, at p. 172, where Vaisey J. expressed the rather sound view that “education” included “not only teaching, but the promotion and encouragement of those arts and graces of life which are after all, perhaps the finest and best part of the human character.” These loudable sentiments tend to confer a stamp of approval on attempts to contribute to the betterment of a class of persons or a community, even if not in a classroom setting. Such judicial thinking conveys the message that education cannot and should not be locked in a school.

65.      In the light of those opinions, with which I concur, I now look at the objects which the trustees wish to apply from the sale of the Monastery subject to the provision of the cy-près scheme of 1997. The Very Reverend Dean Thornhill deposes at paragraph 9 of his affidavit the following salient points in relation to the trust:

“(a) Insofar as the trust is educational its purpose have been fulfilled. The two Catholic Primary Schools of the Parish are entirely adequate to meet the educational requirements of the Parish and both premises are in excellent condition.

(b) As a result of the earlier scheme (of 18th November, 1997) framed by the Commissioners the sum of £92,518 (€117,473.63) is available to meet such requirements. Even if both schools had to be rebuilt (which is inconceivable) the maximum contribution per school to be raised by the parish would be £50,000 (€63,486.90) under the present Department of Education regulations.

(c) There are two other primary schools in the Parish namely Gaelscoil Chorain and a Primary School for Protestant children known as South Abbey National School. The Parish has no responsibility for either of these schools.

(d) The Parish is indebted in the sum of £497,000 arising out of a building programme commenced in or about the year 1990. The debt is attributable to the refurbishment of the League of the Cross Hall, Catherine Street, Youghal; the refurbishment of Gortroe School; and the erection of the Holy Family Hall. I have set out in the memorandum a schedule of the moneys expended in the course of the building programme. I have also set out in that memorandum the purposes for which the League of the Cross Hall and the Holy Family Hall are used and that it is clear that there is a significant educational content in such user. I would also suggest that the other purposes for which the properties are used are of general benefit to the community which I hope to serve.

(e) Upon the sale of the CBS Primary School the trustees sought consent to apply the net proceeds in reduction of the Parish debt. This permission was refused and a cy-près scheme was framed by the Commissioners in the following terms;

‘That the trustees shall retain the money received by them from the sale of Youghal CBS National School at Strand Street, Youghal, Co. Cork in trust with liberty to apply the income and the capital (with the prior consent of the Commissioners) strictly for educational use for all children attending Primary or Secondary Schools in the Parish of Youghal.’

It cannot be assumed (see further deposed) however that this scheme was acceptable to the trustees. It has however been accepted under protest even though the trustees were and are of the view that utilisation of the proceeds in the manner suggested by them is more beneficial and more in keeping with the terms of the trust than the scheme actually framed. In any event the proceeds of that sale are available to meet the general educational requirements in the terms I have outlined above.”

66.      At Schedule 3 of that Affidavit the deponent exhibits a Memorandum which describes the condition of the town of Youghal as he found it some seven years ago on his been appointed parish priest.

67.      I am satisfied that I ought to place emphasis on the contents of same and I quote same as follows:

“Seven years ago I came to Youghal as Parish Priest and very soon I became aware of the following:

1. The rundown appearance of the town, the large number of “for sale” signs, the shabby, unattractive, dilapidated buildings on the main street.

2. The general ear of depression and apidy due to the high level of unemployment.

3. The lack of a community centre where meetings, courses, groups (of) various kinds could meet.

As I listened to people in the community I became convinced that a community meeting place was an absolute necessity. Situated in the centre of the town was a large building in ruins called the League of the Cross Hall which on investigation offered great possibilities if restored and renovated. After detailed negotiations FAS agreed to undertake the restoration work by supplying the labour and expertise but the building materials, refurbishment and furniture cost £380,000 (€482,500.47) which is an astronomical debt in an impoverished town”

68.      Thereafter the deponent sets out examples of the various types of regular meetings and courses provided as follows:

St. Vincent de Paul Society Community Information Centre.

FÁS Service.

Youghal Local Radio.

Youghal Literacy Group.

Alcoholics Anonymous.

Drugs Awareness Group.

G.A.A. Bingo.

Local Soccer Group.

Irish Country Women's Association.

Unislim.

Aerobics.

Comhaltas.

Accord.

Youghal Heritage Centre.

Community Education for the Underprivileged, Lonely, Depressed and Marginalised.

Women's Group Arts and Crafts.

Confidence Building.

Assertiveness and Self-esteem.

Home Management.

Lifewise - Health, Relaxation and Exercise.

Grooming and Deportment.

Women’s Health and Well-being.

Calligraphy.

Enjoy English.

Personal Development.

Reflexology.

Aromatherapy.

Scripture.

Parenting.

69.      And he further states that the above courses have generated a healthier look and lifestyle and have given a much needed boost to Youghal.

70.      Having regard to the foregoing I conclude, on the authority of Keane J. in Re Worth Library [1995] 2 I.R. 301 and Vaisey J. in Re Shaw’s Will Trusts [1952] Ch. 163, that the functions and activities set out above, in the light of modern conditions and the great upsurge in self help groups in this country, must, in my view, be deemed “educational”.

71.      However that view of the activities and functions in the light of the aforesaid decisions does not solve the very complicated issues raised by this application. There is no evidence before me that the cy-près scheme of 1997 is sufficient to meet the needs of the schools as therein provided (namely all of the schools in the parish). I have no evidence that the plaintiffs have and are fulfilling their duties under the scheme of cy-près of 1997. I consider that there are various types of educational aids which the schools in Youghal might need. Aids such as computers, visual aids and facilities come to mind. In this regard I consider the Attorney General’s request of the plaintiffs, in this case, to be more than reasonable. There is no evidence as to any payments being made to any of the schools since 1997. Given the changing face of Irish education, can it ever be said that the sum provided under the 1997 scheme will be sufficient for the schools’ needs into the future? I think not.

72.      For the purpose of completeness I consider the plaintiff’s argument on the State’s duty to provide for free primary education fails due to the plaintiff’s agreement to the cy-près scheme of the 18th November, 1997. Nor do I accept that the Attorney General is endeavouring to insist that the property of the church should be administered in a manner contrary to the said constitutional provisions for the same reason. I note that the property is an asset of the trust not of the church. Given my acceptance of the functions and activities carried on in the Community Centre as by and large educational in nature, it seems to me that the Court would be sympathetic to such an application. However it is with regret that I have come to the conclusion that the trust established in 1892 has been superseded by the cy-près scheme of 1997. I also conclude that such scheme could not be severed, or, to put it another way, this application to sever the proceeds of the sale of the Monastery, cannot be severed from the 1997 scheme. In the circumstances I am unable to grant the plaintiffs the relief they seek.