The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 1994

Recent Irish Cases

Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University

The following case summaries have been reprinted f r om t he

Irish Law

Times and Solicitors Journal

w i t h t he kind permission of t he publishers.

In the Matter of the Trust of the Worth

Library: The Provost, Fellows and

Scholars of the College of the Holy and

Undivided Trinity near Dublin and

Patricia Donlon v. Attorney General

and the Eastern Health Board:

High

Court (Keane J) 18 June 1993

Trust - Charity - Cy-pres scheme - Bequest

of books for benefit of certain office holders

for time being in hospital - Closure of hos-

pital and sale of building - Appointment of

first named plaintiffs as trustees and re-

moval of books to their premises - Purchaser

of hospital building seeking return of library

- Application for order framing cy-pres

scheme - Whether bequest charitable - Na-

ture of charity testator intended to benefit -

Whether conditions had arisen for exercise

by court of cy-pres jurisdiction- Charities

Act 1961, section 47

Facts

By his will dated 11 November

1723, Dr Edward Worth left a large col-

lection of books on a variety of topics to

trustees to be kept in a room at Dr

Steevens' Hospital for the 'use, benefit

and behoof' of the physician, chaplain

and surgeon for the time being for the

hospital. Following his death in 1732,

and in accordance with the bequest, the

books were kept in a room which be-

came known as 'the Worth Library.' On

the closure of the hospital in 1988 its

governors, as the trustees of the books,

decided to transfer the library to Trinity

College and accordingly appointed the

college as trustees in their place. They

also sought the advice of the Commis-

sioners of Charitable Donations and

Bequests for Ireland as to the estab-

lishment of a cy-pres scheme allowing

for the removal of the library to Trinity

College. In the meantime the commis-

sioners approved its transfer to Trinity

College on a temporary basis for safe-

keeping. Later in 1988 the Eastern

Health Board purchased the hospital

for use as their headquarters and

sought the return of the library. On 5

February 1991 the commissioners ap-

pointed Trinity College and the director

for the time being of the National Li-

brary as trustees and vested the trust

property in them. On 31 May 1991, in

accordance with section 51(1) of the

Charities Act 1961, the Attorney Gen-

eral gave his consent to the application

of the trustees to the High Court for an

order framing a cy-pres scheme. On 20

January 1992 Costello J ordered that the

director of the National Library should

be joined as a plaintiff and that the East-

ern Health Board should be joined as a

defendant.

Held

by Keane J in adjourning the fur-

ther hearing of the case in order to

enable a new draft cy-pres scheme to be

prepared: (1) Although all the parties

had agreed that the bequest of the books

was charitable in nature, the court could

require argument on the point as this

was not a case in which it was solely

concerned with the resolution of issues

between private parties. The cy-prés ju-

risdiction could only be exercised in

respect of charitable donations and be-

quests. (2) Given that only a small

proportion of the library was devoted

to medicine and surgery, it was difficult

to regard the bequest as being for edu-

cational purposes. Even if it was for

such purposes, it did not constitute a

charitable gift for the advancement of

education as it was not intended to be

for the benefit of the public. Because of

the terms of the bequest, any educa-

tional function served by the library

would benefit only the office holders

specifically mentioned by the testator.

(3) A gift of a library is not charitable

per

se.

However, such a gift can have chari-

table status if it established that it is for

the public benefit through being open

to the public or conducive to the attain-

ment of other charitable objects. (4) The

testator had not intended that the li-

brary should be used by any persons

other than the three named office hold-

ers. Access to the books was limited and

they could not be removed from the

library. Accordingly the bequest did

not constitute a charitable gift for the

advancement of learning falling within

the fourth category of charitable trusts.

This category covers trusts for purposes

beneficial to the community which do

not fall within any of the other three

categories relating to trusts for the relief

of poverty, the advancement of educa-

tion and the advancement of religion.

(5) It was well established that a gift for

the benefit of a hospital was charitable.

The particular books were of limited

practical value to the surgeon, physi-

cian and chaplain. Nevertheless, the

library provided a place of intellectual

relaxation for these office holders

where they could escape from the

stressful environment of the hospital.

Thus despite being for their benefit, the

bequest could be regarded as a gift for

the advancement of Dr Steevens' Hos-

pital and thus charitable within the

fourth category. (6) The testator had in-

tended to benefit Dr Steevens' Hospital

and no other institution. Thus it was

impossible to infer a general charitable

intention. But as the hospital no longer

existed the original purposes of this ab-

solute and perpetual charitable bequest

could not be carried out according to the

directions and spirit of the gift. There-

fore it was appropriate to alter the

original purposes so as to allow the

property to be applied cy-pres. (7) In

considering how the property should

be applied cy-prés and whether a

scheme should be framed in the manner

proposed by the plaintiffs, it was desir-

able that the original intentions of the

testator should be adhered to as far as

possible. However, the court should not

attempt to envisage how the particular

donor would now dispose of his prop-

erty. Instead the court had to consider

how a hypothetical benefactor of the

present day with the same background

and interests as the donor and a chari-

table disposition would act. It would

also be reasonable to credit him with a

desire to associate his charitable work

with the building in which Dr Steevens'

Hospital was located, as his eighteenth

century equivalent had wished the hos-

pital to be the object of his benevolence

in perpetuity. (8) Notwithstanding the

presence of conservation facilities in

Trinity College, there was no evidence

that the physical condition of the books

would be better preserved by being

kept in the college rather than in the

hospital building. Although the books

could be compared with others of the

same era if they were held at Trinity

College, removing them from the sur-

roundings of the library in the hospital

would make it impossible for scholars

to appreciate their overall significance

as a private library built up in the eight-

eenth century. Accordingly any cy-prés

scheme framed by the court had to pro-

vide for the retention of the books in

their original setting in the hospital. The

matter should be adjourned so that con-

crete proposals for a scheme to facilitate

this could be drafted. (9) The Eastern

Health Board would not be acting out-

side their powers under the Health Acts

1947-1991 if they undertook the custody

and management of the books. Section

78 of the 1947 Act and section 60(3) of

the Health Act 1970 empowered them

to acquire any estate or interest in land

for their statutory purposes, and they

had the implied power to do any acts