B e f o r e :
LORD JUSTICE HARMAN
LORD JUSTICE DIPLOCK
and
LORD JUSTICE RUSSELL
IN THE MATTER OP THE TRUSTS OP THE WILL OP PHYLLIS HELEN SATTERTHWAITE
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MIDLAND BANK EXECUTOR & TRUSTEE CO. LTD. and anr.
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and
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THE ROYAL VETERINARY COLLEGE and others
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)
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MR C. A. SETTLE, Q.C. and MR W. GOODHART (instructed by Messrs
Spencer Young & Partners)
appeared as Counsel for the Appellant, Third Defendant, Arthur Stewart Rich,
MR D. C. POTTER (instructed by Messrs Blount Petrie & Co.)
appeared as Counsel for the Respondents, Plaintiffs and next-of-kin.
MR SCOTT (instructed by Messrs Bircham & Co.)
appeared as Counsel for the Respondents, Second Defendants, Blue Cross.
MR BRYAN CLAUSON (instructed by the Treasury Solicitor)
appeared as Counsel for Her Majesty's Attorney-General
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE HARMAN: The late Mrs Satterthwaite, whose name was once a household word in circles where lawn tennis is played, died in January 1962 a widow with no near relatives. She made her will in December 1952 in somewhat peculiar circumstances. She was already then a widow and her only confidant seems to have been the plaintiff Cole, who was an official at the Bond Street branch of the Midland Bank where she kept her account. She told him she had made a will appointing him executor and written on a piece of brown paper. He said he was not allowed to accept that office and suggested that she should have a properly drawn will making the Bank one of her executors. She then told him she hated all human beings and would leave her money to animals and she asked him to get a list of animal charities, and this he says he did by a reference to the London Classified telephone directory, though it does not clearly appear to which issue he referred. The second stage was that she produced some document apparently containing a list of specific bequests of jewellery to friends and some additional names of organisations interested in animals. The probability is that these were obtained by her from the then current ordinary issue of the telephone book, that is to say the issue of April 1951.
Odium humani generis was the charge levelled according to Tacitus at the Christian victims of the Neronion persecution. It certainly is not a healthy state of mind for a would-be testator. In my opinion, however, the will of this testatrix cannot be construed in reliance on this expression of intention if it be one. Even as an expression of intention it could not be relied on altogether for she relented so far as to present her women friends with jewellery and even gave £100 to Mr Cole for his trouble. Perhaps as she made her way to Bond Street to sign her will she might have been saying to herself: "I wish I liked the human race, I wish I liked its silly face, and when I'm introduced to one I wish I thought it jolly fun". However that may be, Mr Cole and the deceased between them produced a will which she signed then and there and which she locked up in her box at the Bank. It is dated 19th December 1952 and so far as material, after giving several specific legacies of jewellery to friends and £100 to the plaintiff Cole, she desired that her net residuary estate should be divided in approximately equal proportions between the following — I have added numbers for convenience of references
1. The Animal Defence and Anti-Vivisection Society
2. The Council of Justice to Animals and Humane Slaughter Association
3. The Battersea Dogs' Home
4. The London Animal Hospital
5. The Animal Clinic
6. The People's Dispensary for Sick Animals
7. The Animal Rescue league
8. The Animal Welfare Service, and
9. The Royal Society for the Prevention of Cruelty to Animals.
She lived another 10 years but made no alteration except by an immaterial codicil of July 1961 which confirmed the will. Her net residue amounts to some £50,000.
According to Mr Cole, the executors have had little difficulty in tracing five out of the nine nominees who are to share the residue, namely, (1), (2), (3), (6) and (9) but they had doubts about (4), (5), (7) and (8) and applied to the Court by summons for a decision about them. Mr Justice Plowman decided that as to Ho.(4), it was taken by the second defendant, The Blue Cross, on the ground that they ran a hospital in London with a name sufficiently like the name indicated. As to Io.(5), the Judge decided that it went to the National Canine Defence League who conducted a hospital for dogs which they called the Animal Clinic or by some similar name. As to No.(7), the Judge decided that the recipient should be the Royal Society for the Prevention of Cruelty to Animals (thus giving them two shares) on the ground that they had an organisation of a name similar to the one indicated. As to No.(8), the Judge could not find any indicated beneficiary but declared that the will shewed a general charitable intent and by way of scheme divided that share among six of the nine organisations, namely (2), (3), (5), (6), (7) and (9). As is well known, the first recipient is not in law a charity though it was long supposed to be one. There is no appeal as to shares (5), (7) or (8).
This is an appeal by Arthur Stewart Rich, the third defendant to the summons, on the ground that he is to be identified with the London Animal Hospital, the fourth named beneficiary. Mr Rich proved that he had indeed carried on his calling of a veterinary surgeon under that style for a number of years beginning on the 4th December 1943 and carrying it on at 342, South Lambeth Road. It was not a charity: Mr Rich made his living by the treatment of animals on the premises. On the 6th December 1943 Mr Rich registered the business under the Business Names Act 1916 as the London Animal Hospital and carried it on in that name until 1948 when he altered the registration by adding the names of two of his employees as proprietors but maintained the style. In fact they remained his employees, but undoubtedly they were held out to the world as partners in the business. The position was changed by the Veterinary Surgeons Act 1948. Mr Rich, who has no professional qualifications, obtained a registration on the supplemental list under this Act on the 16th October 1950. It then became unprofessional for him to use a trade name in his business. Thereafter and ever since he has carried on the same business under his own name. The entry in the Business Names Register was not withdrawn till July 1952, a few months before the testatrix made her will. Mr Rich's argument is that his trade name exactly answers the description in the will, that this description applied to a hospital for animals carried on under that name at any rate up to July 1952 and that the same business still exists under Mr Rich's own name: that he is therefore the persona designata and must take. In support of this claim he points to the London Telephone Directories for 1947, 1949, 1950 and 1951 in each of which "Animal Hospital, The London, South Lambeth Road" appears in heavy type. This entry has been deleted in the Directory for July 1952, in accordance no doubt with the change of style. It seemed extremely probable that it was to one of these pages of the telephone book that the testatrix made reference when compiling her list for not only does Mr Rich's entry appear but there are references to "Animal Clinic", "Animal Defence and Anti-Vivisection Society", "Animal Rescue League" and "Animal Welfare Service" on the same page.
The other competitor for this share, successful before the Judge, relied on the fact that under its former name of The Dumb Friends League it ran a hospital for dogs not far from the testatrix's house which had on the facia:
OUR DUMB FRIENDS
LEAGUE ANIMALS' HOSPITAL.
There was very vague evidence that this was sometimes known as "The London Animals Hospital" but on the face of it the claim is much weaker than Mr Rich's. Nothing beyond the barest statements from two deponents, both connected with the League and therefore not independent witnesses, are forthcoming and not a scrap of written confirmation.
The case against Mr Rich is that when the testatrix made her will in December 1952 there was no organisation known as The London Animal Hospital. There was Mr Rich carrying on in his own name the business that had been carried on until July under that style. Further, the business so being carried on under the business name did not consist of Mr Rich but of Mr Rich and his two employees.
It was argued that the testatrix obviously did not intend to benefit a private individual who was not bound to devote the money to the welfare of animals but the retort was that the testatrix merely got the names out of the telephone book without enquiry into the reality behind the names and if she hit on Mr Rich so much the better for him, who answers the description.
On the whole, though it is a very near thing, I find that Mr Rich did not exactly answer the description and therefore has not the advantage derived from that exact correspondence with the indicated name which even so would not be conclusive - see N.S.P.C.C. v. Scottish N.S.P.C.C. (1915 Appeal Cases, p.207 at p.212). That was a ease in which a Scotsman left his money to a beneficiary which he called the National Society for the Prevention of Cruelty to Children. The English Society of that name succeeded because it was the exact name indicated although it may have seemed very probable that the Scottish Society of a similar name was intended. Lord Loreburn giving judgment on page 212 said this:
"My Lords, I think the true ground upon which to base a decision in this case is that the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances. I use as a convenient method of expressing one's thought the term 'presumption'. What I mean is that what a man has said ought to be acted upon unless it is clearly proved that he meant something different from what he said".
Now here there is not that exact correspondence which would raise that very strong presumption because of the change which had occurred before the date when the will was written. Therefore I do not think Mr Rich can take advantage of that argument. I think it appears from the form of the residuary gift here that the testatrix intended to benefit a purpose and not a person and that Mr Rich fails. The Blue Cross on the other hand fails in my judgment because the evidence is not enough to identify their organisation with the bequest.
There remains the claim of the Attorney-General that a general charitable intent is shewn. Upon this I have felt the gravest doubts. If a particular donee were intended which cannot be identified, no general intent would follow. But when one looks at the whole of the residuary bequest, it seems plain that each share is intended to go to some object connected with the care or the cure of animals. That anti-vivisection has been declared not to be in law a charitable object is irrelevant. The society exists to save animals from suffering. The other names make the same sort of suggestion, though it is true that the evidence suggested that the word "clinic" often indicated a place where the business of animal surgery was carried on rather than a charitable organisation.
The Judge has held that there is a general charitable intent sufficient to cause share No.(8) to be applied cy-pres and it would be inconsistent to come to a different conclusion in the case of share No.(4) if, as I have held, the object there too is not identifiable. It follows that a scheme must in this instance also be settled.
I will ask Lord Justice Russell to deliver his judgment.
LORD JUSTICE RUSSELL: The appellant, Mr Rich, contends that the gift of one ninth of residue to "The London Animal Hospital" operates as a gift to him beneficially as an individual, because at the dates of the will and of the death he carried on the trade or business of a veterinary practitioner which, until some six months before the date of the will, was carried on under that trade name.
Prima facie an Animal Hospital is a charity, as being calculated to promote public morality by encouraging kindness, discouraging cruelty and stimulating humane sentiments to the benefit of mankind: but it lacks the quality of legal charity if it be carried on for private profit as a profession or occupation or trade. If the style under which a person works for a living is descriptive, to one without knowledge, of a charitable undertaking, I consider that a testamentary bequest in favour of that style should be taken to indicate not an intention to benefit the business or the proprietor of the business carried on under that style, but rather a charitable purpose , unless the circumstances demonstrate that the testator was aware that it was a private enterprise and not a charity. Any other view must run counter to the intentions of testators in most relevant cases. A trade name, it may be remembered, is prima facie a label for the purposes of trade and not for the receipt by the bearer of testamentary benevolence.
In the present case there is not the slightest indication that the testatrix, when defining the object of her bounty as "The London Animal Hospital", had any knowledge of Mr Rich's establishment, let alone that it was an enterprise conducted for private profit. If, therefore, the bequest pointed to an activity established in South Lambeth Road, because blindly selected from, for example, the telephone directory, this can confer on Mr Rich no right to assert either that the legatee named is merely a label for Mr Rich, or (which would come to the same thing) that the money must be paid to the account of a business concern of which he is the sole owner. Accordingly in my judgment Mr Rich's claim fails.
This would have been my conclusion even if the bequest were is dated and even if at the date of the will Mr Rich had been carrying on his trade or occupation under the particular style and had so continued throughout. But in addition the bequest here is the fourth of nine: and none of the other eight displays a benevolence towards individuals: on the contrary they display a benevolence towards animals. Noscitur e sociis. Moreover if the style is to be regarded as a label for an individual trader, it was the style under which Mr Rich had not held himself out (alone) in trade since 1948; from 1948 to 1952 he had shared the style with two others; and at the date of the will nobody was trading under it.
If the bequest cannot be a bequest to Mr Rich personally (directly or through his business) what is the result? Mr Justice Plowman has held that the language points to the Animals Hospital run by the Blue Cross (and formerly by Our Dumb Friends league) in Hugh Street, Victoria, not far from Ebury Street where the testatrix lived but the other side of the railway, basing himself upon the affidavits of Mr Carpmael and Miss de Luzy. The former stated barely that since opening in 1906 the Hugh Street enterprise "has been known as 'The Animals' Hospital' or 'The London Animals' Hospital'". Miss de Luzy more sweepingly said that from 1908 to 1952 (her employment by Our Dumb Friends League) it "was generally and popularly known as the London Animals' Hospital". Such evidence, without the slightest condescension to detail, is highly unsatisfactory on this sort of point, more particularly when the Blue Cross brochure (which was exhibited) commonly refers to the Hugh Street activity as "the Victoria Hospital" or "our Victoria Hospital", an appellation not mentioned by either deponent. Nothing is said of where it was known as the London Animals Hospital, or why it should be so distinguished. There is no evidence that the testatrix contributed to that activity or otherwise showed any interest in or knowledge of it, and if she ever walked past it, it would have been strange had she used the appellation "London" instead of something more localised. Moreover at the time of the will the facade had at its centre "Our Dumb Friends League", the words on either side being "Animals" and "Hospital" as, so to speak, supporters. Circumstances which are known and are permissible to be considered are that there was available to the testatrix (through Mr Cole) the current Classified Telephone directory with its heading of "Animal Welfare Societies". The Hugh Street premises did not there figure on their own but as only one activity of Our Dumb Friends League, the words "(Animal Hospital)" being inset and in brackets. There was also quite possibly still available to her at her home the ordinary London telephone directory which featured in bold type "Animal Hospital, The London" with the address in South Lambeth where Mr Rich had conducted and still conducts his veterinary practice. It is to be observed that on that page are featured the "Animal Defence and Anti-Vivisection Society" and "Animal Rescue League" and other items of which the will may be reminiscent. She might, however, before her will have received delivery of the July 1952 edition which did not include the "Animal Hospital, The London" entry: though again this part of her will might be a repetition from an earlier will. On the other hand the testatrix plainly relied not on these directory resources alone, for "The Council of Justice to Animals and Humane Slaughter Association" and the "Battersea Dogs Home" do not appear on those pages. I should add that the evidence of the ordinary telephone directory was not before Mr Justice Plowman.
On the whole I think the correct conclusion is that more probably the testatrix took this style or title from a telephone directory, without any other knowledge of the situation, rather than that she was referring to the Blue Cross activity in Hugh Street.
What is the result in law of this? I have already indicated that she is to be taken as intending to benefit a charitable activity. But the organisation picked by name was not such. Prima facie, therefore, the bequest would fail and there would be a lapse, with the result in this case in fact -owing to the incidence of liabilities and death duties - of mere relief of other residuary objects. But my assumption is that the testatrix was pointing to a particular charitable application of this one-ninth of residue. If a particular mode of charitable application is incapable of being performed as such, but it can be discerned from his will that the testator has a charitable intention (commonly referred to as a general charitable intention) which transcends the particular mode of application indicated, the Court has jurisdiction to direct application of the bequest to charitable purposes cy-pres. Here I have no doubt from the nature of the other dispositions by this testatrix of her residuary estate that a general intention can be discerned in favour of charity through the medium of kindness to animals. I am not in any way deterred from this conclusion by the fact that one-ninth of residue was given to an Anti-Vivisection Society which in law - unknown to the average testator - is not charitable.
Accordingly in my judgment the correct answer in this case is that the one-ninth share in question is not payable to Mr Rich but should be applied cy-pres and to that end the matter should be referred to chambers for settlement of a scheme.
LORD JUSTICE DIPLOCK: With that humility which is becoming in a Common Law lawyer when confronted with such an archaic branch of the Chancery law, I agree with the judgments which have been delivered.
Orders Declare that the share left to the London Animal Hospital takes effect only as a valid charitable bequest and a scheme to be brought into chambers in respect of that one-ninth share. Proceedings stayed against all parties except the Attorney-General. Costs of all parties to come out of the one-ninth share.
