Effectiveness Considerations at Common Law

Strict common law adherence to the ‘as near as possible’ principle is unusual. Courts regularly take account of utility factors at the application stage. There are so many cases on point that it can be stated as a general common law rule that at the application stage, courts consider effectiveness criteria alongside the ‘as near as possible’ principle.

i. Practicability of New Objects

The most obvious reason why original intention may not be adhered to arises where there is no feasible object proximate to the gift. This is not a direct challenge to the ‘as near as possible’ principle; a judge may anxiously apply the rule, only to find that the ‘next nearest’ possible purpose is very far removed from the original gift. However, the requirement of practicability does show that, at the most basic level, the judge must take account of effectiveness. There is no use in re-establishing a trust, only for it to fail again.

A well-known example of the practicability problem is Attorney General v The Iron Mongers’ Company,15 where a gift had been left for the redemption of slaves in Barbary or Turkey. By the time of the case, slavery had been prohibited and so it was not possible for the court to find a closely related object. In the event, the gift was applied towards far-removed educational purposes. Lord Cottenham observed:

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There is necessarily great latitude in exercising the jurisdiction over charity funds where the direct object of the donor fails; and therefore very different opinions may be formed upon that subject in the same case. A charity may be cy-pres to the original object, which it seems to have no trace of resemblance to it, but which may be very properly adopted if no other can be found having a nearer connection.16

The exercise of this latitude is vividly illustrated by Attorney General v Wansay.17 _{In that case, the court posited a number of hypothetical examples of}

practicability, each one being more remote from the original purposes. A gift had been left to provide annual apprenticeships for two sons from a particular Presbyterian congregation from a particular parish. There were not enough suitably qualified boys in the parish for the trust to be usefully practicable. In these circumstances, the Lord Chancellor directed how the gift might be altered ‘as near as possible’. The underlying principle in his reasoning was that a

practicable scheme must be effected. If highly proximate purposes could not realistically be carried out, then it would be necessary to undertake a more radical alteration in order for the scheme to be workable. The judge provided three possible schemes for the charity, the first being the most ‘cy-pres’, the last being the most practicable. He held (i) the surplus could be applied to sons from other parishes; (ii) if that was not possible, it could be applied to

16 _{Ibid 477. Although it should be noted that another disposition in the will was for educational}

purposes. Finding that one gift had failed, the House of Lords applied to another of the testator’s stated charitable objects.

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daughters of the parish, (iii) for the sons of Presbyterians generally; and (iv) for the building of a Presbyterian school.

ii. Judicial Policy

Occasionally, judicial policy has prevented the new scheme from closely adhering to the original intention of the donor. This is an effectiveness consideration. The courts impose their policy view with regards to the new purpose; rather than apply the gift ‘as near as possible’, courts have diverted the gift to purposes that they consider desirable. The courts have reserved the right to assess the social utility of the testator’s original gift. In Re Weir Hospital,18 _{Cozens Hardy MR stated:}

Wherever the cy-pres doctrine has to be applied, it is competent to the Court to consider the comparative advantages of various charitable objects, and to adopt by the scheme the one which seems most beneficial.’19

Historically, it is in relation to dole charities that judges have been most willing to set aside the ‘as near as possible’ principle. In Re Campden Charities20

updating a dole charity ‘as near as possible’ was rejected both on the basis of unfeasibility and because the court considered the gift to be of inherently low utility. Lady Campden had established the dole in 1643. At that time, she

18 _{[1910] 2 Ch 124} 19_{Ibid 132}

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directed that a sum should be distributed twice a year from the church porch in the parish of Kensington. The value of her gift had increased substantially over the years, and the trustees were no longer distributing funds according to her wishes. Although it was strictly possible to do so, Jessell MR held that the court would not apply the gift ‘as near as possible’ on the basis that such a charity would be impracticable:

...ought we, sitting here simply to interpret the law, to hold ourselves bound by the words of the will to distribute this large sum of money in doles of this fashion? I think we ought not. As I said before, we must consider not only the change in amount, but the changes in circumstances... Could she have intended to distribute 500 sovereigns every half-year among the poor of a large town like Kensington. There was no such idea in her mind.21

But the judge expressly stated that the as near as possible principle would not be justified in relation to a low utility gift:

...we know that extension of doles is simply the extension of mischief. That is a very good reason for not extending them if we can help it.22

Consequently, the fund was applied to a range of new purposes, none of which were directly related to the charity. The case is not isolated, similar reluctance

21_{Ibid 327-328} 22_Ibid

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to apply the ‘as near as possible’ principle to a dole can be seen in Marchant v Attorney General.23 _{Again, a historic dole was operating in Kensington. Over a}

period of time, a large surplus of funds developed, but the Court of Appeal refused to apply the excess ‘as near as possible’ in favour of a reformed and extended dole. Instead, the Court took the view that it was not possible to translate the testator’s historic intention into the modern day.

Judicial policy is also apparent outside the context of doles. A strong reformist note was struck by the House of Lords in the Scottish case, Clephane v The Lord Provost of Edinburgh.24 _{The site of a hospital had been bought by a}

railway company for a large sum. By a scheme, the Court of Session had directed that it was not necessary to re-establish the hospital charity. A primary purpose of the original hospital trust was the relief of poverty, and the court found that this object could met by an alternative means of ‘out-door relief’. On appeal to the House of Lords, Lord Westbury defended the radical change of direction for the former hospital on effectiveness grounds:

In the progress of society, however, with the greater diffusion of wealth, and the growth of population, the means originally devised may become inadequate to the end…25

23 _{(1866-67) LR3 Eq 424} 24 _{(1869) LR I Sc & Div 417} 25_{Ibid 421}

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These judgements show the courts directly prioritising policy considerations above the ‘as near as possible’ principle. Judges have been prepared to put the principle to one side so as to proactively reform trusts.