although in carrying into execution a bequest to an individual, the mode in which the legacy is to take effect must be of the substance of the legacy; yet, where the legacy is to charity, the court will consider charity as the substance; and in such cases, and in such cases only, if the mode pointed out fail, it will provide another mode by which the charity may take, but by which no other than charitable legatees can take. (a) A still stronger case is, that if the testator has expressed an absolute intention to give a legacy to charitable purposes, but has left uncertain, or to some future act, the mode by which it is to be carried into effect, there, the court of chancery, if no mode is pointed out, will of itself supply the defect and enforce the charity.(b) *Therefore, it [*11 has been held, that if a man devise a sum of money to such charitable uses as he shall direct by a codicil annexed to his will, or by a note in writing, and afterwards leaves no direction by note or codicil, the court of chancery will dispose of it to such charitable purposes as it thinks fit. (c) So, if a testator bequeath a sum for such a school as he should appoint, and he appoints none, the court of chaucery may apply it for what school it pleases. (d) The doctrine has been pressed yet further; and it has been established that if the bequest indicate a charitable intention, but the object to which it is to be applied is against the policy of the law, the court will lay hold of the charitable intention and execute it for the purpose of some charity agreeable to the law, in the room of that contrary to it.(e) Thus, a sum of money bequeathed to fom a Jews' synagogue has been taken by the court, and judicially transferred to the benefit of a foundling hospital!(g) And a bequest for the education of poor children in the Roman Catholic faith, has been decreed, in chancery, to be disposed of by the king at his pleasure, under his sign-manual. (h) Another principle equally well established is, that if the bequest be for charity it matters not how uncertain the persons or objects may be; or whether the persons who are to take are in esse or not; or whether the legatee be a corporation capable in law of taking or not; or whether the bequest can be carried into exact execution or not: in all these and the like cases, the court will sustain the legacy, and give it effect according to its own principles; and where a literal execution becomes inexpedient or impracticable, will execute it *cy pres. (i) Thus, a devise of lands to the church[*12 wardens of a parish (who are not a corporation capable of holding lands), for a charitable purpose, though void at law, will be sustained in equity. (k) So, if a corporation, for whose use a charity is designed, is not in esse, and cannot come into existence but by some future act of the crown, as for instance, a gift to found a new college, which requires an incorporation, the gift is valid and the court will execute it.(7) So, if a devise be to an existing corporation by a misnomer which makes it void at Abr. 193; s. c. Bridg. Duke 476; Moggridge v. Thackwell, 3 Bro. C. & 517; s. c. 1 ̊Ves. jr. 464; 7 Ibid. 36; Mills v. Farmer, 1 Merivale 55, 100; White v. White, 1 Bro. C. C. 12. (a) Mills v. Farmer, 1 Meriv. 55, 100; Moggridge v. Thackwell, 7 Ves. 36; Attorney-General v. Berryman, 1 Dick. 168; Roper on Legacies 130. (6) Mills v. Farmer, 1 Meriv. 55, 95: Moggridge ". Thackwell, 7 Ves. 36; White v. White, 1 Bro. C. C. 12. (e) Attorney-General ». Syderfen, 1 Vern. 224; s. c. 2 Freem. 261, recognised in Mills v. Farmer, 1 Meriv. 55, and Moggridge v. Thackwell, 7 Ves. 36, 70. (d) 2 Freem. 261; Moggridge ». Thackwell, 7 Ves. 36, 73, 74. (e) De Costa v. De Pas, I Vern. 248; Attorney-General v. Guise, 2 Ibid. 266; Casey v. Abbot, 7 Ves. 490; Moggridge v. Thackwell, 7 Vern. 36, 75; Bridg. Duke 466. (g) Ibid., and Mills v. Farmer, 1 Meriv. 55, 100. (h) Cary v. Abbott, 7 Ves. 490. (i) Attorney-General v. Oglander, 3 Bro. C. C. 166; Attorney-General v. Green, 2 Ibid. 492; Frier v. Peacock, Rep. temp. Finch, 245; Attorney-General v. Boultree, 2 Ves. jr. 380; Bridg. Duke 355. (k) 1 Burn's Eccl. Law 226; Duke 33, 115; Com, Dig. Chancery, 2, N, 2; Attorney-General v. Combe, 2 Ch. Cas. 13; Rivett's case, Moore 890; Attorney-General v. Bowyer, 3 Ves. jr. 714; West v. Knight, 1 Ch. Cas. 135; Highmore on Mortm. 204; Tothill 34; Mills v. Farmer, 1 Meriv. 55. (1) White v. White, 1 Bro. C. C. 12; Attorney-General v. Downing, Ambl. 550, 571; AtAttorney-General v. Bowyer, 8 Ves. jr. 714 727. 1 law. (a) So, where a devise was to the poor generally, the court decreed it to be executed in favor of three public charities in London. (b) So, a legacy towards establishing a bishop in America was held good, though none was yet appointed. (c) And where a charity is so given, that there can be no objects, the court will order a new scheme; but if objects may, though they do not, at present, exist, the court will keep the fund for the old scheme. (d) And when objects cease to exist, the court will new model the charity.(e) In further aid of charities, the court will supply all defects of conveyances, where the donor hath a capacity and disposable estate, and his mode of donation does not contravene the provisions of any statute. (g) The doctrine is laid down with *great *13] accuracy by Duke, (h) who says, that a disposition of lands, &c., to charitable uses is good, "albeit there be defect in the deed, or in the will, by which they were first created and raised, either in the party trusted with the use, where he is misnamed, or the like; or in the party for whose use, or that are to have the benefit of the use, or where they are not well named, or the like; or in the execution of the estate, as, where livery of seisin, or attornment, is wanting, or the like. And therefore, if a copyholder doth dispose of copyhold land to a charitable use, without a surrender; or a tenant in tail convey land to a charitable use, without a fine; or a reversion, without attornment or insolvency; and in divers such like cases, &c., this statute shall supply all the defects of assurance; for these are good appointments within the statute."() But a parol devise to charity out of lands, being defective as a will, which was the manner of the conveyance the testator intended to pass it by, it can have no effect as an appointment which he did not intend.(k) Yet, it has been nevertheless held, that where a married woman, administratrix of her husband, and entitled to certain personal estates belonging to him (viz., a chose in action), afterwards intermarried, and then, during coverture, made a will, disposing of that estate, partly to his heirs and partly to charity, the bequest, though void at law, was good as an appointment, under the statute of Elizabeth, for this reason," that the goods in the hands of administrators are all for charitable uses, and the office of the ordinary and of the administrator is to employ them in pious uses, and the kindred *and children have no property nor pre-eminence but under the title of charity.(l) *14] With the same view, the court of chancery was, in former times, most astute to find out grounds to sustain charitable bequests. Thus, an appointment under a will to charitable uses, that was precedent to the statute of Elizabeth, and thus utterly void, was held to be made good by the statute. (m) And a devise which was not within the statute was, nevertheless, decreed as a charity, and governed in a manner wholly different from that contemplated by the testator, although there was nothing unlawful in his intent; the lord chancellor giving as his reason, "summa est ratio, quæ pro religione facit ;" and because the charity was for a weekly sermon, to be preached by a per (a) Anon., 1 Ch. Cas. 267; Attorney-General v. Platt, Rep. temp. Finch 221. (b) Attorney-General v. Peacock, Rep. temp. Finch 245; Owens v. Bean, Ibid. 395; Attorney-General v. Syderfen, 1 Vern. 224; Clifford v. Francis, 1 Freem. 330. (c) Attorney-General v. Bishop of Chester, 1 Bro. C. C. 144. jr. 714; Damer's Case, Moore 822; Collinson's (d) Attorney-General v, Oglander, 3 Bro. C. Kenson's Case, Hob. 136; Attorney-General v. C. 160. (e) Attorney-General v. City of London, 3 Bro. C. C. 171; s. c. 1 Ves, jr. 243. (g) Case of Christ's College, 1 W. Bl. 90; 3. C. Ambl. 351; Attorney-General v. Rye, 2 Vern. 453, and Raithby's Notes; Rivett's Case, Moore 890; Attorney-General v. Burdett, 2 Vern. 755; Attorney-General v. Bowyer, 3 Ves. Burdett, 2 Vern. 755. (k) Jenner v. Harper, P.ec. Ch. 389; 1 Burn's Eccl Law 226. And see Attorney-General v. Bains, Prec. Ch. 271. (1) Damer's Case, Moore 822. (m) Smith v. Stowell, 1 Ch. Cas. 195; Collinson's Case, Hob. 136. son to be chosen by the greatest part of the best inhabitants of the parish, he treated this as a wild direction, and decreed that the bequests should be to maintain a catechist in the parish, to be approved by the bishop. (a) So, though the statute of Hen. VIII. of wills, did not allow of devises of land to corporations to be good, yet such devises to corporations for charitable uses were held good as appointments, under the statute of Elizabeth. (b) Lord Chancellor CowPER, in a case where he was called upon to declare a charitable bequest valid, notwithstanding the will was not executed according to the statute of frauds, and these cases were cited, observed, "I shall be very loth to break in upon the statute of frauds and perjuries in this case, as there are no instances where men are so easily imposed upon, as at the time of their dying, under the pretence of charity." "It is true, the charity of judges has carried several cases on the statute of Elizabeth great lengths; and this occasioned the distinction between operating by will and by appointment, which surely the makers of that statute never contemplated."(c) It has been already intimated that the disposition of modern judges has been to curb this excessive latitude of construction *assumed by the court of chancery [*15 in early times. But, however strange some of the doctrines already stated may seem to us, as they have seemed to Lord ELDON, yet they cannot now be shaken, without doing (as he says) that, in effect, which no judge will avowedly take upon himself, to reverse decisions that have been acted upon for centuries. (d) A charity must be accepted upon the same terms upon which it is given, or it must be relinquished to the right heir; for it cannot be altered by any new agreement between the heir of the donor and the donees. (e) And where several distinct charities are given to a parish, for several purposes, no agreement of the parishioners can alter or divert them to other uses. (g) The doctrine of cy pres, as applied to charities, was formerly pushed to a most extravagant length; (h) but this sensible distinction now prevails, that the court will not decree execution of the trust of a charity, in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed, but another mode may be adopted, consistent with the general intention, so as to execute it, though not in mode, yet in substance. If the mode becomes, by subsequent circumstances, impossible, the general object is not to be defeated, if it can be obtained. (2) And where there are no objects remaining to take the benefit of a charitable corporation, the court will dispose of its revenues by a new scheme, and upon the principles of cy pres. The rule is, that if lands are given to a corporation for charitable uses, which the donor contemplates to last for ever, the heir never can have the land back again; but if it becomes impracticable to execute the charity, another similiar charity must be substituted, so long as the corporation *exists. If the charity does not fail, but the trustees or corporation fail, the court of chancery will substitúte itself in their stead, and carry on the charity. (k) [*16 When the increased revenues of a charity extend beyond the original objects, the rule, as to the application of such increased revenues, is, that they are not a resulting trust for the heirs-at-law, but are to be applied to similiar charitable purposes, and to the augmentation of the benefit of the charity.(7) (a) Attorney-General v. Combe, 2 Ch. Cas. 18, (b) Griffith Flood's Case, Hob. 186. (c) Attorney-General v. Bains, Prec. Ch. 261. And see Adlington v. Cann, 3 Atk. 141. (d) Moggridge v. Thackwell, 7 Ves. 36, 87. (e) Attorney-General v. Platt, Rep. temp. Finch 221. And see Margaret Professors, Cambridge, 1 Vern. 55. (g) Man v. Ballet, 1 Vern. 42; 1 Eq. Cas. Abr. 99, pl. 4. And see Attorney-General v. Gleg, 1 Atk. 356 ; Ambl. 584. (h) Attorney-General v. Minshall, 4 Ves. jr. 11, 14; Attorney-General v. Whitchurch, 3 Ibid. 141. (i) Attorney-General v. Boultree, 2 Vcs. 380, 387; s. c. 3 Ibid. 220; Attorney-General v. Whitchurch, Ibid, 141; Attorney-General v. Stepney, 10 Ibid. 22. (k) Attorney-General v. Hicks, High. Mortm. 336, 353, &c. (2) Attorney-General v. Earl of Winchelsea, 3 Bro. C. C. 373; High. Mortm. 187, 327;. Ex parte Jortin, 7 Ves. 340; Bridg. Duke 588. Charitable Bequests. In former times, the disposition of chancery to assist charities was so strong, that, in equity, assets were held to satisfy charitable uses, before debts or legacies; though assets at law were held to satisfy debts, before charities. But even at law, charities were then preferred before other legacies. (a) And this, indeed, was in conformity to the civil law, by which charitable legacies are preferred to all others. (b) The doctrine, however, is now altered, and charitable legacies, in case of a deficiency of assets, abate in proportion as well as other pecuniary legacies. (c) And the courts have shown a disinclination to favor charities so far as to marshal a testator's assets, where the residue, bequeathed to charitable purposes, consists of mixed property, of real and personal estate, so as to direct the debts and other legacies to be paid out of the real estate, and reserve the personal to fulfil the charity, where the charity would be void as to the real estate. (d) Yet where there are general legacies, and the testator has charged his estate with payment of all his legacies, if the personal estate be not sufficient to pay the whole, the court has said, the charity shall be paid out of the personal estate, and the rest out of the real estate, that the whole may be performed in toto.(e) It has been already stated, that charitable bequests are not void on account of any *17] uncertainty as to the persons or objects *to which they are to be applied; although almost all the cases on this subject have been collected, compared and commented on with his usual diligence and ability by Lord ELDON, in two recent decisions. The first was the case of Moggridge v. Thackwell, 7 Ves. 36; s. c. 1 Ibid. 464; 3 Bro. C. C. 517, where the testator gave the residue of her personal estate to James Vaston, his executors and administrators, "desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen, who have large families and good characters; and appointed Mr. Vaston one of her executors.· Mr. Vaston died in her lifetime, of which she had notice; but the will remained unaltered. The next of kin claimed the residue, as being lapsed by the death of Mr. Vaston; but the bequest was held valid, and established. In the next case (Mills v. Farmer. 1 Meriv. 55), the testator, by his will, after giving several legacies, proceeded, “the rest and residue of all my effects I direct may be divided for promoting the gospel in foreign parts, and in England; for bringing up ministers in different seminaries, and other charitable purposes, as I do intend to name hereafter, after all my worldly property is disposed of to the best advantage." The bill was filed by the next of kin, praying an account and distribution of the residue, as being undisposed of by the will or any codicil of the testator. The Master of the Rolls held the residuary bequest to charitable purposes void for uncertainty, and because the testator expressed not a present, but a future, intention to devise this property. Lord ELDON, however, upon an appeal, reversed the decree, and established the bequest, as a good charitable bequest, and directed it to be carried into effect accordingly. It has been made a question, whether a court of equity, sitting in one jurisdiction, can execute any charitable bequests for foreign objects in another jurisdiction. In the case last stated, no objection ocurred to the residuary bequest, on the ground, that it contemplated the promotion of the gospel in foreign parts. In the case of Mr. Boyle's will, the bequest was not limited in terms to foreign countries or objects, but it was applied to a foreign object, under a decree of the court of chancery; and when *18] that object failed, a new scheme was directed. (g) There are several other cases, in which charities for foreign objects have been carried into effect. In the Provost, &c., of Edinburgh v. Aubery, Ambl. 236, there was a devise of 35007. South Sea annuities to the plaintiffs, to be applied to the maintenance of poor laborers, residing in Edinburgh and the towns adjacent; and Lord HARDWICKE said, he could not give any directions (a) High. Mortm. 67. (b) Fielding v. Bond, 1 Vern. 230. (e) Ibid., and Raithby's Note, 2. (d) High. Mort. 355; Moff v. Hodges, 2 Ves. 52. (e) Attorney-General v. Graves, Ambl. 158; Arnold v. Chapman, 1 Ves. 108. (9) Attorney-General v. City of London, 3 Bro. C. C. 171; s. c. 1 Ves. jr. 243. as to the distribution of the money, that belonging to another jurisdiction, that is, to some of the courts in Scotland; and therefore, he directed that the annuities should be transferred to such persons as the plaintiffs should appoint, to be applied to the trusts in the will. So, in Oliphant v. Hendrie, 1 Bro. C. C. 571, where A., by will, gave 3007. to a religious society in Scotland, to be laid out in the purchase of heritable securities in Scotland, and the interest thereof to be applied to the education of twelve poor children, the court held it a good bequest. In Campbell v. Radnor, Ibid. 171, the court held a bequest of 7000l. to be laid out in the purchase of lands in Ireland, and the rents and profits to be distributed among poor people in Ireland, &c., to be valid in law, So, a legacy towards establishing a bishop in America, was supported, although no bishop was yet established. (a) In the late case of Curtis v. Hutton, 14 Ves. 537, a bequest of personal estate for the maintenance of a charity (a college) in Scotland was established; and in another still more recent case, a bequest in trust to the magistrates of Inverness, in Scotland, to apply the interest and income for the education of certain boys, was enforced as a charity.(b) Nor is the uniformity of the cases broke in upon by the doctrine in De Garcia v. Lawson, 4 Ves. 443, note. There, the bequests were to Roman *Catholic clergymen, or for Roman Catholic establishments, and were considered as void and illegal, being equally against the policy and the enactments of the British legislature. [*19 In respect to the mode of administering charities in chancery, it is not easy to extract from the authorities any consistent doctrine. Where the trust is for definite objects, and a trustee is appointed to administer it, who is in esse and capable of performing it, all the court does, is to watch over the charity, and see that it is executed faithfully, and without fraud; and if the trustees should die, so that it remains unexecuted, the court will then act as trustee, and do as the trustees ought to do, if living. But where money is given to charity, generally, without trustees or objects selected, in some cases, the charity has been applied by the king, under his sign manual, and in others, by the court of chancery, according to its usual course, that is, by a scheme. reported by a master and approved by the court. It is not easy to perceive upon what principle the one case has in practice been distinguished from the other. Lord ELDON has observed, "all I can say upon it is, I do not know what doctrine could be laid down, that would not be met with some authority upon this point; whether the proposition is, that the crown is to dispose of it, or the master, by a scheme."(c) It is laid down in books of authority, that the king, as parens patriæ, has the general superintendence of all charities, not regulated by charter, which he exercises by the keeper of his conscience, the chancellor; and therefore, the attorney-general, at the relation of some informant, when it is necessary, files ex officio an information in the court of chancery to have the charity properly established and applied. (d) · And, it is added, that the jurisdiction thus established does not belong to the court of chancery, as a court of equity, but as administering the prerogative and the duties of the crown.(e)__And it seems also to be held, that the jurisdiction vested in the Lord Chancellor by the statute of Elizabeth, is personal, and not in his ordinary *or extraordinary jurisdiction in chancery; like that, in short, which he exercises as to idiots and lunatics. (g) It seems in the highest degree reasonable, that the king, as parens patriæ, should have a right to guard and enforce all charities of a public nature, by virtue of his general superintending power over the public interests, where no other person is intrusted with such right. But where money is given to charity, generally and indefinitely, without any trustees, there does not seem to be any difficulty in con- (a) Attorney-General v. Bishop of Chester, 1 Bro. C. C. 444. (b) Mackintosh v. Townsend, 16 Ves. 330. (c) Moggridge v. Thackwell, 7 Ves. 36, 83. (d) 3 Bl. Coin. 427; 2 Fonbl. Eq. b. 3, p. 2, c. 1, § 1, and note a. (e) Cooper's Eq. Pl. xxvii. 2 Fonbl. Eq. b. 2, [*20 p. 2, c. 1; Lord Falkland v. Bertie, 2 Vern. 342; Mitf. Eq. Pl. 29; Bailiffs, &c. of Burford v. Lenthall, 2 Atk. 551. (g) Bailiffs, &c. of Burford v. Lenthall, 2 Atk. 551; 2 Fonbl. Eq. b. 2, p. 2, c. 1, § 1, and note a, § 3, and note i. |