OPERATIONAL GUIDANCE
APPLICATION OF PROPERTY CY-PRÈS
IN RE HANBEY'S WILL TRUSTS. CUTLERS' COMPANY v. PRESIDENT AND GOVERNORS OF CHRIST'S HOSPITAL, LONDON
OG 2 B3 – 18 March 2002
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This transcription is taken from the Chancery Division Law Reports, 1956 [1955 H. 1480]. |
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The testator, who died on December 25 1786, by his will dated January 12 1782, bequeathed the sum of £8,000 to the Cutlers' Company [of Sheffield] upon trust to apply the annual income thereof in perpetuity for divers charitable purposes set out with great particularity, with a gift over in favour of Christ's Hospital in the event of the company at any time failing to distribute the income of the trust fund in the manner, and according to the directions prescribed by the will. |
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Since the year 1917 the company had found itself no longer able to comply strictly with the terms of the bequest in respect of the mode of the annual distribution of the fund. |
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In 1955 the company issued a summons to determine, inter alia, the question whether the gift over had or had not taken effect, and the Court treated the summons as though it were amended to include a request for a settlement of a Scheme to preserve the original trusts in an amended form:- |
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Held: |
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that the Court had power to direct a scheme continuing the original trusts in a different form; |
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that the effect of such a scheme, if directed, would be to defeat the gift over; |
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that the Court had a discretion as to whether or not a scheme should be directed; and |
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that in the exercise of this discretion and taking into consideration all the circumstances of the present application - in particular, the fact that the company had been committing breaches of trust (albeit in good faith) for a considerable period of time without the authority of the Court or of any other body with jurisdiction over charities, and the fact that it would be difficult to settle a scheme which would apply the property cy-près with the testator's objects - the Court was of the opinion that this was not a case in which a scheme ought to be directed, and that, accordingly, the gift over took effect. |
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