June 4, 1904.]
Was
who come within the ordinary definition of objects of charity and we find that the particular mode the testator contemplated of doing this does not exhaust all the funds he gave to trus- tees for his charitable purpose, ought not the Court to say the "paramount intention charity, that the money was ear-marked, 80 to speak, as charity money
for the poor, helpless, and desolate sick, in Hongkong, of the nationalities mentioned ? Is it not then the duty of the Court, favouring charity as the Court always does, to provide another mode, on the cy-pres principle, of applying such surplus for the benefit of the objects of the testator's benevolence? For instance, as the testator, in his codicil, said he wished that in carrying on the hospital the least possible use might be made of drugs, and expressed his faith in the healing processes of nature, a convalescent home in connection with the hospital might be sug. gested where patients might, in the Peak air, gain a more complete restoration to health. I take the first instance that occurs to me; but assuming there should prove to be a surplus after due provision for the hospital is made, and assuming that such surplus must be used for charitable purposes in accord- ance with the cy-pres doctrine, there would, no doubt. have to be an enquiry as to the best method of dealing with that surplus.
*
**
CHINA OVERLAND TRADE REPORT.
result. I must hold that, "assuming that, at the date of the testator's death, his residuary estate bequeathed by his will and codicil was more than sufficient to provide for the erection and maintenance of the hospital therein mentioned. the surplus must be devoted to charity and the cy-pres doctrine be applied, and that there is no resulting trust for the next of kin as regards such surplus. My decision is, therefore. as follows:---
Declare that in designating the Colonial Chaplain as one of the committee and one of the trustees of the hospital mentioned in his will and codicil, the testator intended to designate the Chaplain of St. John's Cathedral Church in this Colony.
Declare that the residuary bequest in the will and codicil is a good charitable bequest and that the executors and trustees of the will should erect and provide for the maintenance of a hospital at the Peak in accordance with the directions contained in the said will and codicil, and that if due provision for the erection and maintenance of such hospital should not exhaust the whole of the residuary estate, the unexhausted portion or surplus ought to be applied to charitable purposes according to a scheme for the regulation and management of such surplus trust property to be settled by the Court, having regard to the directions contained in the will and codicil and the whole circum-
Order that an enquiry be made by the Registrar, as to the nature, scope, size and cost of the hospital directed by the said will and codicil to be erected and maintained, and as to the endowment
required for such maintenance. with a view to the future expansion (if necessary) of such hospital. and that a scheme for the erection, endowment and management of such hospital be prepared by the executors and trustees and settled by the Re- gistrar. subject to the approval of the Court.
Order that an enquiry be made by the Regis trar as to the charitable purposes to which any surplus of the residuary estate (after providing for the erection and maintenance of the said hospital) ought to be applied, and that a scheme be prepared by the executors and trustees of the will and settled by the Registrar, subject to the approval and direction of the Court, for the appropriation of such surplus to such charitable
purposes.
Order that the costs of all parties be taxed, as between solicitor and client. and he paid out of the residuary estate.
It was, however, urged for the next of kin that the testator manifested no general inten-stances of the case. tion in favour of charity but simply an intention to erect and maintain a particular charitable institution, of a particular class, for a particular purpose, and for particular persons; and that there was nothing in the will or codicil to indi- cate any general intention of charity. I am. however, of opinion that reasoning in the way Mr. Justice Kay and the Lords Justices reasoned in Biscoe and Jackson (the Shoreditch case) the general paramount intention of the testator was to benefit the poor, desolate people I have men. tioned, although he specified the particular way in which he wished it done. In the course of his judgment, in the case of Mayor of Lyons v. Advocate-General of Bengal, decided by the Judicial Committee of the Privy Council. in 1876, Law Reports, 1 Appeal Cases, p. 91. Sir Montague Smith, speaking of the cy-pres doc. trine as applied to charitable bequests, says at p. 113The principle on which the doctrine rests appears to be that the Court treats charity in the abstract as the substance of the Order that an enquiry be made by the Re- gift and the particular disposition as the mode,gistrar, as to the best mode of realising and wind- so that, in the eye of the Court, the gift, not- ing up the testator's estate. withstanding the particular disposition may not be capable of execution. subsists. as a legacy which never fails and cannot lapse. This seems to be what Lord Eldon understood to be the effect of the decisions from the following pas- sage of his judgment in Mills v. Farmer. With regard to charity, therefore, without going through all the cases which I examined with great diligence in Moggridge v. Thackwell, a case that, bound by precedent, I decided as much against my inclination as any act of my judi- cial life, I consider it now established that although the mode in which a legacy is to take effect is in many cases with regard to an individual legatee considered as of the substance of the legacy, where a legacy is given so as to denote that charity is the legatee, the Court does not hold that the mode is of the legacy, but will effectuate the gift to charity as the substance; providing a mode for that legates to take which is not provided for any other legatee." This passage is reported in somewhat different language, but substantially to the same effect, in Mer. 99. Now Mr. Granville Sharp gave all the residue of his estate, in trust for a charitable purpose. to the established doctrine, if all the money left Charity was his residuary legatee and, according is not exhausted in carrying out the particular mode in which he desired his charitable intention carried out, the Court must effectuate the substantial intention of charity by providing some mode for the application of the surplus upon the principle of cy-près.
*
I may add that, before the decree is finally drawn up. I shall be glad if any of the parties would forward to me in writing any suggestions they have to make with regard to any improve. ment in its form if I have omitted anything they desire added which does not affect its sub- stance. Although I have delivered a very long judgment I have done this advisedly, because these authorities are not very easy of access, and I have read them very carefully; and if there should be an appeal it would be a convenience to have everything in black and white and all the facts stated in a nutshell.
Mr. Slade asked that the costs be taxed on the basis of an ordinary hearing in Court.
His Lordship declined to do this, however, as the case had been heard in chambers. He had only delivered judgment in open Court because the matter was one of much public importance.
419
HONGKONG SANITARY
BOARD
A meeting of the Sanitary Board was held ou the 2nd inst. in the Board Room. Hon. Dr. J. M. Atkinson presided, and there were also present Hon. A. W. Brewin, Registrar-General; Mr. Fung Wa Chun; Colonel W. E. Webb, R.A.M.C.; Mr. A. Rumjahn; Hon. H. E. Pollock, K.C.; Mr. E. A. Hewett; Dr. W. W. Badeley. Captain Superintendent of Pelies! Pearse, Medical Officer of Health; Mr. F. J.
Secretary). Dr. Barnett; and Mr. T. A. Hanmer (Acting
The minutes of the last meeting were con» firmed.
OLD WELLS IN QUEEN'S ROAD. A minute by the Medical Officer of Health, and 126, Queen's Road Central, be closed, was recommending that certain old wells in No. 122
discussed.
able to close any more wells unless they could Mr. LAU CHU PAK said it was not reason. get an efficient water supply. If the Chinese did drink this water they boiled it first. H.. personally, was driven to use well water when he was unable to get any from the mains. He proposed the wells be not closed until there was a proper supply of water for washing purposes.
Mr. A. RUMJAHN said the places were first- class eating houses that required water to wash pots, etc. The wells should not be closed while there was an intermittent supply. Let the matter be brought forward when there was a good water supply.
Mr. E. A. HEWETT strongly recommended that the wells be closed. The question was, Did the Government supply enough water? When there was a short supply of water at the eating houses the well water would be largely used for potable purposes. to order that these wells be closed at once. Mr. LAU CHU PAK contended that the water
nullahs where people haled out water. was better than that in mosquito breeding
They ouglit
On a rote being taken it was carried that the well be closed. Messrs. Lau Chu Pak and A. Rumjahn voting against it.
NULLAH AT THE BACECOURSE.
the nullah running by the west side of the Race-
Dr. Barnett, in a minute, recommended that
course be trained.
Hon. Registrar-General minuted: It would be much better, where the Board is called upon to recommend expenditure for an object like and not one on a particn ar object. The M.O.H; this, if it had placed before it a general report
should invite the attention of the Board to all nullahs, the training of which he thinks ad- visable, and the Board can then decide which work it considers most pressing.
Mr. E. A. Hewett minnted: I agree with the Registrar-General. The two nullahs running into the Parade Ground at the Peak are swarming with mosquitoes, which must adversely affect the health of the men at Mount Austin Barracks;
Mr. A. Rumjahn minuted: Every nullah in the Colony should be trained. The nullahs at Magazine Gap should have been trained long ago. I hope the Medical Officer of Health will ·· make a general report on all untrained nullahs, Hon. H. E. Pollock minuted: This nullah clearly ought to be trained.
Col. Webbminuted: I think this nullah should be trained.
Mr. Lau Chu Pak minuted: As a matter of fact every nullah ought to be trained.
The PRESIDENT proposed that the recom-
Hon. D.P.W.: This is entirely a matter of funds. The Government has spent a large In the British Court for Siam on the 17th ult. his Honour Acting Judge Wilkinson and
amount this year, and have other nullahs equally
brought by Chus Hok Chong against Mr.mendation be forwarded to the Government. a jury concluded the hearing of the action objectionable in view for further training.
Thomas Jones, Manager of the Chartered Bank, for 3,000 ticals damages for malicious pro- secution. The jury found for the defendant. with costs.
His Lordship after dealing with cases quoted sin on the 19th ult. ended in a win for Mr. J. The race for the Champion Stakes at Tient- by counsel went on to say-I have, now, I think, | M. D.'s Rainband (Mr. R. Stewart up), who called attention to all or nearly all the cases cited in argument before me. Some of them are not perhaps very much in point, but as they were mentioned during the discussion of the case in chambers, I have deemed it my duty to con. sider them, and I am of opinion that, in the
was followed by Mr. Detring's Cym (Mr. N. A. Andersen) and Mr. FitzJames's Light O'Heels (Mr. F. J. L. Shaw). The pari-mutuel paid over $57 on the winner. Mr. J. M. D.'s stable won 7 firsts, 3 seconds, and 3 thirds at the meeting.
to include the two nullahs he had mentioned. Mr. E. A. HEWETT proposed an amendment He had visited the vicinity and been nearly driven away by mosquitoes. A few weeks back the Peak was almost antenable. It was very thought Colonel Webb would agree with him. bad for the troops at Mount Austin. He
Colonel WEBB said the troops had not been affected by these nullahs, the men being provided with mosquito curtains. The streams were examined after the rains, but they were unable to find many mosquitoes. He recom- mended that as they could not train all the streams at the same time they should find