418
some additions for other personal property and certain deductions for debts due from the estate, at the time of the testator's death. The testator had no wish to have his estate sold and wound up with undue haste. He knew as well as any one that, in Hongkong, land varies greatly in value from time to time, and that to place a large number of leaseholds on the market for sale at one and the same time, might have an | adverse influence on the prices obtainable. He, however, wished suitable opportunities to be taken to dispose of the properties so as to close the estate. After cautioning his executors against any hasty attempt to realise the pro- perty for which a fitting time must he carefully selected," he says, later on in his will (dated, as before stated. 7th June, 1896)
**
88 annum
THE HONGKONG WEEKLY PRESS AND
be to
That must be
[June 4, 1904. In Hongkong, it is quite unoccupied by patients coming within the charitable purposes. classes intended to be benefited by the testator." competent for a testator to bequeath his lease- In the 21st paragraph of the affidavit of Mr. holds for such purposes, and he can, alo, as in Edmund Hamilton Sharp, he states that it is England. if he chooses. leave nothing, or as he pleases, to his next of kin. estimated that the hospital will be completed little as and ready for the reception of patients on or and bequeath the whole or any part of his estate about the 1st August. 1906 provided no to charity, leaving his nearest relative un- unforeseen delays occur in the meantime. provided for. By English law, unlike that of other countries, apart from special According to the estimated value of the estate some by that time, there will be apparently a very contract, a man can, by will. bequeath his whole large surplus after making ample provision for real and personal estate to strangers even all cost of erecting and maintaining the hospital though he should leave a wife and children. how being erected at Mount Kellett. The next In the present case the testator was a widower resulting trust and had no children. I merely mention this of kin contend that there is a
it may- for them of such surplus, unless the Court because, however natural should hold that such unexhausted portion must sympathise with those next of kin who might. be applied to charitable purposes in accordance not unreasonably, have hoped to receive larger benefits under the direct testamentary disposi I hereby sanction and approve the appro- | with the doctrine of cy-près.
The Attorney-General, on the other hand,, tions of the deceased, no such considerations priation for five years by the executor who shall be resident in Hongkong and conduct the man-without admitting that the residue is necessarily can have any weight with the Court in deciding agement of my estate, of the sum of $1000 larger than the expansion and growing needs of the law in the present case.
remuneration and two the hospital may at some future time require, ¡ decided upon such authorities as are available. per
There have been a great number of cases hundred dollars per annum for expenses of argued that, in any case, this residue having locomotion. Should the estate not be wound been given absolutely and unconditionally to decided in the English Courts extending back up during this period I sanction and approve charity, must he devoted to some charitable pur- many years, but although some of these are not the appropriation for two years further of one pose on the ground that once a charity always very unlike the present case. I am not aware f any one exactly similar to it in every respect. thousand dollars per annum, and for yet another a charity." and that the next of kin cannot take
much three years of seven hundred and fifty dollars and can never answer to the description of those This is the less surprising because
intended to benefit by depends on the precise wording of the particular per annum; the object being kept in view to whom the testator
He, moreover, pointed instrument under which the charitable trust avail of opportunities without any undue haste the gift of this residue. to dispose of the property and close the estate. out that the testator gave legacies or annuities arises, and this wording differs in different One must endeavour to arrive at the If my life is spared, I may be able to do some to those of his next of kin whom he intended to wills. thing towards this end. but there appears at benefit and then gave away the residue to right principle to apply in each particular case. * It was, for instance, established in the case of present to be nothing in view but development." charity.
I mention these directions of the testator. The position of the Attorney-General in cases, Thetford School, (reported 8. Coke's Reports. because it appears that, since his death. the of this kind, as law officer of the Crown, is thus p. 130) so long ago as 1609, that where land, at leaseholds have appreciated in value in a remark-stated by Lord Macnaghten, in the recent the time of th› will of the value of £35 a year. able manner. According to a valuation made cases of Wallis v. The Solicitor-General of New had been devisal to certain persons for certain by Messrs. Linstead and Davis and Messrs. † Zealand. (1903). Appeal Cases. p.p. 181 and 182 charitable purp, the objects of the charity Denison and Ram. conjointly, in January. 1904. It is the province of the Crown as pureux took the benefit of th surplus where the rent In that case the testator the value of the leasehold property was putri to enforce the execution of charitable rose to £100 a year. $1,969,512 and. taking into account other sums,trusts, and it has always been recognised as the ¦ had allotted so much for the maintenance of a it has been estimated that on 14th March, 1964, duty of the law officers of the Crown to inter-previer four days in the year and of a master the total value of the estate was $2.219.177. vene for the purpose of protecting charities and jund usher of a free Grammar School and of The debts, general, and testamentary expenses affording advice and assistance to the Court in certain poor people, and had specified a certain It sum for each, amounting in all to £35 per and most of the legacies have been paid. Pro- the administration of charitable trusts.'
But when. later on, the value of the this reason that the Attorney-annum, vision has been made. I understand. for the was
made properly.
à property rose, it was held that the amounts deferred legacies and the annuities. and it is General
and that the contended on behalf of the next of kin that the party to these proceedings. I was specially specified should be increased clear residue is far in excess of the amount asked by the parties to express my opinion on trustees took no part of the increase to their reasonably required to
Assuming own use. erect and maintain the following point of law. viz. :-" the hospital contemplated by the testator that. at the date of the testator's death, his With regard to that hospital. it seems residuary estate bequeathed by his will and that on 30th March. 1901. Rural Build codicil was more than sufficient to provide for ing Lot. No. 16. ou Mount Kellett. in the erection and maintenance of the hospital the Peak District of this Colony. was therein mentioned. ought the surplus to be purchased as a site for its erection at a cost of devoted to charity and cy-pris doctrine to be $70.000. which sum has been paid out of the applied. or would there be a resulting trust for estate. The erection is being proceeded with the next of kin as regards such surplus!“ in accordance with plans and a specification prepared by Messrs. Palmer and Turner, archi tects and surveyors of this Colony, and under their supervision. The contract for completion, including residences for the House Surgeon and Nurses, Mortuary, and all necessary buildings and outhouses and servants and coolie quarters, as per plans. amounts to $250,000.
on
for
was. very
Of course. until proper enquiry has been made. I am not in a position to say whether the residue is more than sufficient for the present and future needs of the hospital, having regard to the progressive character of this Colony and the great increase of population which has taken place within the last five and twenty years and which seems likely to continue, the date of the testator's death a dollar was. I find. worth a trifle under two shillings, and when his will was proved, his entire estate was at what was equivalent to about one sworn hundred thousand pounds sterling. speaking roughly.
At
+
From that time to the present day, there has been a long series of cases which have established by degrees certain general principles. One of to he that where a those principles seems testator has devoted property to some charitable purpose, but owing to some impediment, either of law, or of the absence of eonsent of some person or persons, or the default of some expected set of circumstances. the Court must decide whether the testator hal unly a particular intention or whether, beyond that, there was a general intention of charity. In the latter case. the failure of the particular intention has let in the general intention, and the Court has applied the fund cy-pres.
་་
After quoting some cases illustrating this When to these amounts of $70,000 and
principle His Lordship proceeded---Turning now $250,000 is added all other expenditure for the
to the will and codicil of Mr. Granville Sharp. proper equipment, furnishing, fitting, surgical
it is clear that he gave the whole of the residue of his estate in trust for the purpose of the instruments. necessaries for the dispensary, and other requisites, it is estimated, according to
erection and maintenance of a hospital to the glory of God, and the good of men in loving the affidavits filed, that the total cost will
His codicil states that he This is the first time I have heard of a hos-memory of his wife. amount to $460,088. leaving only further provi- sion to be made for maintenance. According pital having too much money; one is more fami- wishes it to be for the benefit, care, and happiness But assuming of patients primarily who are helpless, and he to the estimates mentioned in the affidavit of liar with a different complaint. Mr. Edmund Hamilton Sharp the at present for the purposes of the legal question which all adds that it is emphatically to be for the poor. He also adds that he sole executor (and brother) of the testator, the parties asked me to decide. that the residue the helpless, the forsaken, and for him who is cost of such maintenance of a hospital depends is more than sufficient for the erection and alone and desolate." in a great degree upon its size. In the present maintenance of the particular hospital specified case, it is being erected a scale to by the testator conducted as nearly as is practi- accommodate thirty beds which. I am informed, cable upon the lines indicated by him. I will is the estimated maximum which could. in proceed to consider whether the next of kin the opinion of the original. as well as would be entitled to the surplus or whether it of the present. trustees, be required in the must be devoted to charitable purposes in accor- Colony for a hospital of such a nature as that dance with the cy-près doctrine, that is to say, indicated by the testator. The present Trustees in accordance with the principle of applying include the Bishop of Victoria. the Chaplain of property as nearly as possible according to the S. John's Cathedral Church (whom I have no donor's intentions when these intentions canuct doubt the testator meant when he spoke of the be exactly carried out, with regard to the whole Colonial Chaplain, a post no longer in existence of such property. The law of this Colony in at the date of the will). and the minister of such matters is practically the same as that of Union Church and they state that. in their England. But we have here uo Board of opinion. "a hospital containing thirty beds for Charity Commissioners to assist us, and we the reception of patients would be sufficient to have no Statutes of Mortmain, which are refer- carry into effect the charitable intentions of red to in so many of the English cases, and the testator, and that, under ordinary circum. which in England prevented leasehold property stances. many of the said beds would be (inter alia) from being validly bequeathed for
wished the hospital to be reserved for British. American and European patients, only." Now. to adopt a method of reasoning similar to that of Mr. Justice Kay, in the case of the Shoreditch soup-kitchen and cottage hospital, may it not be said :-Now, obviously, on the face of the will and codicil the persons intended to be benefited are those for whose use and benefit the hospital was designed. Who are they? Certainly. pri- marily, the poor. the helpless, the forsaken, and those who are alone and desolate among the British, American, and European sick in Hong- therefore an intention to benefit that koug: class of persons by providing them with a hos. pital may be treated as the paramount intention But, assuming that when this of the testator.“ has been done. there should be a surplus over : surely when we see a benevolent intention of benefiting a certain class or number of people
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