Equity and succession

Will trusts - gift to charity in perpetuity subject to clause in defeasance - trust impossible to perform - proviso in defeasance void - property not held upon resulting trust for grantor Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others: ChD (Evans-Lombe J): 31 July 2000

The trustees of a will, acting pursuant to s.6 of the Cleveland Somerset Estates Act 1846, conveyed, by deeds dated 1849 and 1852 respectively, two plots of land to the claimant trustees for the purpose of providing a school, in perpetuity, subject to a clause in defeasance which provided that should the land cease to be used as a school for a period of one year in which case the land reverted to the trustees of the estate of the testator.

In 1986 the land ceased to be used as a school.

The first to fifth defendants, who claimed to be entitled as successors to the beneficiaries under the testator's will, contended that on their true construction the deeds of 1849 and 1852 made only a limited gift, under the School Sites Acts 1841-4, during the period in which the charitable purpose was capable of subsisting; the Attorney-General contended that the deeds were intended to create an absolute and perpetual gift to charity with a gift over on the failure of the charitable purpose described.

Christopher Nugee QC for the claimants.

Thomas Baxendale for the first to fifth defendants.

William Henderson for the Attorney-General.

Held, giving judgment for the Attorney-General, that when the relevant gift was in the first place unlimited in time but was followed by clauses of defeasance or powers of revocation, it was a matter of construction as to whether the donor intended to devote the gift to charity in perpetuity or only for a limited purpose and period; that when an absolute and perpetual gift was made with a gift over on cesser which failed for some reason, the original perpetual gift to charity remained, whereas when a gift to charity for a limited period failed then the interest which had not been disposed of reverted to the grantor; that the words used in the operative part of the 1849 deed (and to a lesser extent that of the 1852 deed) evinced a clear intention by the grantors in that deed to transfer the land upon trust in perpetuity for the purposes of a school subject only to 'a clause of defeasance' upon which those trustees were to hold the land in question in the event of the trusts failing; that by common consent both provisos for reverter were void for remoteness; and that the trustees under both deeds held their possessory title for charity upon the trusts of the two deeds and not upon trust for the successors of the grantors or those now presently entitled under the trusts of the will.