dred and children have no property nor pre-eminence but under the title of charity."* 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 thos utterly void, was held to be made good by the statute. 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 wa nothing unlawful in his intent; the Lord Chancellor giving as his reason 66 summa est ratio, quæ pro religione facit;" and because the charity was for a weekly sermon, to be preached by a person 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. 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.§ 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." || It has been already intimated, that the disposition of modera judges has been to curb this excessive latitude of construction *Damer's case, Moore, 822. + Smith v. Stowell, 1 Ch. Cas. 195. Collinson's case, Hob. 136. 141. Attorney General v. Combe, 2 Ch. Cas. 18. Griffith Flood's case, Hob. 136. Attorney-General v. Bains, Prec. Ch. 261. and see Adlington v. Cann, 34tk assumed by the Court of Chancery 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.* 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. 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.‡ The doctrine of cy près, as applied to charities, was formerly pushed to a most extravagant length ; 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. 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 près. The rule is, that if lands are given to a corporation for charitable uses, which the donor contemplates to last forever, the heir never can have the land back again; but if it becomes impracticable to execute the charity, another similar charity must be substituted, so long as the corporation * Moggridge v. Thackwell, 7 Ves. 36. 37. † Attorney General v. Platt, Rep. temp. Finch, 221. and see Margaret Professors Cambridge, 1 Vern. 55. Man v. Ballet, 1 Vern. 42. 1 Eq. Ab. 99. p. 4. and see Attorney General v. Gleg, 1 Atk. 356. Amb. 584. Attorney General v. Minshall, 4 Ves. jun. 11. 14. Attorney General v. Whitchurch, 3 Ves. jun. 141. || Attorney General v. Boultree, 2 Ves. 380. 387. S. C. 3 Ves. jun. 220. Attorney General v. Whitchurch, 3 Ves. jun. 141. Attorney General v. Stepney, 10 Ves. 22. exists. If the charity does not fail, but the trustees or corporation fail, the Court of Chancery will substitute itself in their stead, and carry on the charity.* 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 similar charitable purposes, and to the augmentation of the benefit of the charity.t 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. And this indeed was in conformity to the civil law, by which charitable legacies are preferred to all others.§ 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. And the Courts have shown a disinclination to favour 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.* ** 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.ft It has been already stated, that charitable bequests are not void on account of any uncertainty as to the persons or ob * Attorney General v. Hicks, High. Mortm. 336. 353. &c. Attorney General v Earl of Winchelsea, 3 Bro. Ch. Cas. 373. High. Mertm. 187. 327. Ex parte Jortin, 7 Ves. 340. Bridg. Duke, 588. High. Mortm. 67. Fielding v. Bond, 1 Vern. 230. Id. and Raithby's Note, (2) ** High. Mortm. 355. Moff v. Hodges, 2 Ves. 52. Attorney General v. Graves, Amb. 158. Arnold v. Chapman, 1 Fes. 108. * jects 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, 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 life time, 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, 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 occurred 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 ap plied to a foreign object under a decree of the Court of Chan cery; and when that object failed, a new scheme was directed.* There are several other cases, in which charities for foreign objects have been carried into effect. In the Provost, &c. of Edinburgh v. Aubery,† there was a devise of 3,500. South Sea annuities to the plaintiffs, to be applied to the maintenance of poor labourers residing in Edinburgh and the towns adjacent; and Lord Hardwicke said he could not give any directions 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 ap plied to the trusts in the will. So, in Oliphant v. Hendrie, where A. by will gave 300l. 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 l Campbell v. Radnor, the Court held a bequest of 7,000l. 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 esta blished. In the late case of Curtis v. Hutton, 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 Scot land, to apply the interest and income for the education of cer tain boys, was enforced as a charity. Nor is the uni formity of the cases broke in upon by the doctrine in De Garcia v. Lawson. There the bequests were to Roman 243. Attorney General v. City of London, 3 Bro. Ch. Cas. 171. S. C. 1 Ves. Ju † Amb. 236. 1 Bro. Ch. Cas 571. 1 Bro. Ch. Cas. 171. Attorney General v. Bishop of Chester, 1 Bro. Ch. Cas. 444. **14 Ves. 537. Mackintosh v. Townsend, 16 Ves. 330 tt 4 Ves. Jun. 433, Note. |