Seanad Éireann debate -
Tuesday, 19 Jul 1955

Vol. 45 No. 3

Charitable Donations and Bequests (Amendment) Bill, 1955—Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. Everett)

This is a very short Bill, the object of which is to increase what are called the cy-prés powers of the Commissioners of Charitable Donations and Bequests.

The expression cy-prés means “as nearly as possible” and the legal doctrine of cy-prés is this, that where there is a gift or trust for a charity which can be substantially, but not literally, fulfilled it will be made effective by applying it so that the intention of the donor may be carried out as nearly as may be practicable. Thus, where a gift is made with a clear charitable intention, the gift will not be allowed to fail because it cannot be applied to the particular purpose originally intended, if such a purpose was specified. In such a case the law will substitute another way of applying the gift that is as nearly as possible to what the donor intended.

An instance of the application of the cy-prés doctrine is a bequest for the building of a church in a place where there is already a church which had not been built at the time the bequest was made. In such a case the funds may be applied to the repair and decoration of the church. Another illustration is a gift to a non-existent or unidentifiable institution, as for example, to a specified but non-existent institution for providing free meals for the poor: in this case the gift may be applied to an existing institution performing the same sort of charitable work.

Likewise, if a gift is declined by a particular charitable organisation it may be applied to another charitable organisation of the same kind which is willing to give effect to the donor's charitable intentions.

The powers of administering charitable trusts cy-prés are vested in the High Court and to a limited extent in the Commissioners of Charitable Donations and Bequests. Section 6 of the Charitable Donations and Bequests Act (Ireland), 1871, confines the commissioners' powers to cases not exceeding £300 principal sum or £30 annual amount. In these cases, where it is found unlawful or impracticable to apply the donation or bequest according to the donor's direction or intention, the commissioners may, if they think fit, apply it or direct its application to such charitable and pious purposes as they shall judge to be best having regard to the intention of the donor.

The amounts mentioned in Section 6 of the 1871 Act now represent very small charitable gifts on account of the fall in the value of money since 1871, and the commissioners have asked me to have the amounts increased. The increases suggested, namely, £2,000 principal sum in the case of personal property, £60 rateable valuation in the case of land, and £100 annual sum, are specified in Section 1 of the Bill, which proposes to substitute a new section for Section 6 of the 1871 Act.

There are at the moment about 20 small charitable trusts, exceeding £300 and not exceeding £2,000 in each case, which will have to be administered cy-prés and, in the ordinary course, applications to frame schemes would have to be made to the High Court. In these cases the expenses of High Court proceedings would be out of proportion to the amount involved, and the result would be a disproportionate loss to the charities concerned. In these circumstances, the commissioners are holding their hands so that the Oireachtas may consider the amendment of the law proposed in this Bill.

There is being prepared a comprehensive Bill to consolidate and amend the whole statute law in relation to charities. This Bill has already been introduced in the Dáil. It will be based to a large extent on the report of a committee set up by my predecessor to consider the subject. Unfortunately, the Bill has taken longer to prepare than we anticipated and plenty of time will probably be required by each House to examine it when it is available in the near future. In the meantime, the Government have agreed to sponsor the Bill now before the House which proposes what, I trust, is a non-controversial amendment of the existing law for the purpose indicated.

Éamon Ó Ciosáin

Ní theastaíonn uaim mórán do rá ar an mBille seo mar níl ann ach Bille beag agus tá a fhios againn go bhfuil gá leis, is dócha. Dubhairt an tAire linn go bhfuil fiche cásanna in a bhfuil na coimisinéirí i dtrioblóid mar gheall ar chonus an t-airgead do chur ar fáil. Sé an rud ná dubhairt an tAire linn ná an faid ama atá i gceist maidir leis na cásanna sin.

The law relating to the ancient doctrine of cy-prés is being changed, I think, for the first time over a number of years. We do not really know what actual necessity has arisen to make a change in the law necessary. I was always under the impression that the Commissioners for Charitable Donations and Bequests had ample power to interpret the object of a charity in accordance with the cy-prés doctrine—the Commissioners for Charitable Donations and Bequests, on the one hand, and the High Court on the other. Now it appears that there are 20 cases of charitable donations awaiting administration pending the passing of this legislation. I should like to ascertain from the Minister over what period the 20 cases have accumulated.

I submit that objects of charity were very clearly defined long ago—in certain cases, I think, as far back as 1871. The objects of charity on that occasion were brought under four headings by a certain learned judge:— (1) the relief of poverty, (2) the advancement of education, (3) the advancement of religion and (4) any other purpose deemed to be beneficial to the community which does not come under any of the foregoing three heads. These were the four categories. I was of opinion, I must confess, that, when the law was as clearly defined as that, the commissioners and also the courts had ample power to dispose of any moneys left in charity, either in the form of bequests or donations.

I see that Section 6 of the Charitable Donations and Bequests Act of 1871 is being amended and that the amounts coming within the jurisdiction of the commissioners are being increased—in the case of an annuity, from £30 to £100, and, in the case of personalty, or, in plain terms, money, from £300 to £2,000 and in the case of real property, the rateable value of which is £60. That is a big increase in the amounts involved. I propose to make one suggestion here and it is that if it is thought that the commissioners are capable of administering sums amounting to the figures mentioned, I do not see why they could not administer every kind of charity, all moneys given to charity.

Professor Hayes

With no limits?

Mr. Kissane

The High Court is frequently brought into these cases and my submission is that the courts could be excluded altogether and these moneys left entirely to the jurisdiction of the commissioners. I feel also that the amount of £2,000 is not entirely in keeping with a valuation of £60, because I submit that at the present day a farm of land with a rateable valuation of £60 would be worth nearer to £4,000. We have no objection to the passing of this Bill and we propose to give the Minister all stages to-day.

Professor Hayes

As the Minister has pointed out, this Bill does not change the law of cy-prés. It simply increases the amounts which the commissioners, under the Act of 1871, may dispose of, without making application to the High Court. Therefore, a good deal of what the Senator has said, with some of which I am in agreement, will arise on the comprehensive Bill which the Minister has promised. The Minister says that a comprehensive Bill is in preparation to consolidate and amend the whole statute law in relation to charities. When that Bill comes in, the question of the value of money and the relationship of amounts to rateable valuations which Senator Kissane has mentioned, will arise. This Bill is merely a stop-gap to enable the commissioners, before the comprehensive Bill has become law, to deal with sums of money which, in the nature of things, they should be able to deal with now. It simply increases the existing amounts under the 1871 Act without altering the law.

The Senator asked how long the 20 cases have been arising. They have arisen, I am told, over the past two years, which would indicate that there is a certain urgency for the Bill, but I think the Senator should be thanked for his attitude towards the Bill, and the House may rest assured that no change is being made in the law itself. It is merely being made in the amounts and the Seanad will have an opportunity soon of dealing with a comprehensive Bill. It is quite clear that, having regard to the changed value of money and changed circumstances of many kinds, there must be a great many charities which could not be administered in the precise terms in which they were originally made.

Professor Fearon

With regard to this doctrine of cy-prés, there is a point which has puzzled me for a long time, and I think this is an occasion on which it might be elucidated. It is common sense that if it is unlawful to apply it, a charitable donation is not going to be applied, if it is impracticable; but a thing which is impracticable to-day may become practicable to-morrow. Supposing the commissioners decide that a particular donation is at present impracticable. they are enabled to frame a new scheme. Does that mean that the original donation thereby just disappears—the original intent? Suppose then that a year or two later it became practicable to apply the original charity, what is the position? For example, in the case of money left aside for the betterment of horses and the provision of horse troughs, horse troughs now are only to be found in museums, but another generation might come along in which it would be practicable again to apply that charity.

I am wondering if the operation of this very sensible doctrine of cy-prés means that the charity ceases to exist as such when it has been framed as a new scheme. In other words, should it become practicable again to apply the charity, can the charity be revived or has it been finally torpedoed?

Question put and agreed to.

Agreed to take the remaining stages now.

Bill passed through Committee, reported without amendment, and received for final consideration.

Question proposed: "That the Bill do now pass".

Mr. Kissane

There is one remark that I should like to pass in connection with the words used in the Bill. As everybody can see, the two little words "cy-prés” are foreign words and they are being inserted in this Bill without any hesitation and without any objection from anybody. Senators will remember that on a former occasion when I tried to bring in a word, not from a foreign language but from our own language. I was made the object almost of ridicule in this House. I hope that Senators will change their attitude in this matter in the future.

Professor Hayes

Senator Kissane is aware that a side note is not part of a Bill and that it is not justicable, it cannot be taken notice of by the courts; so, actually the phrase cy-prés is not in the Act when it becomes law. That is only a small point. I know what Senator Kissane means.

Mr. Kissane

It is being used all the same.

Question put and agreed to.