blish the charity in such manner as by law it may.* But the jurisdiction of Chancery over charities does not exist where there are local visiters appointed; for it then belongs to them and their heirs to visit and control the charity.t As to what charities are within the statute, they are enumerated with great particularity in Duke on Charitable Uses, and Comyn's Digest, tit. Charitable Uses, (N. 1.) It is clear, that no superstitious uses are within its purview, such as gifts of money for the finding or maintenance of a stipendiary priest, or for the maintenance of an anniversary or obiit, or of any light or lamp in any church or chapel, or for prayers for the dead, or to such purposes as the superior of a convent or her successor may judge expedient. But there are certain uses, which, though not within the letter, are yet deemed charitable within the equity of the statute; such as money given to maintain a preaching minister; to maintain a schoolmaster in a parish; for the setting up a hospital for the relief of poor people; for the building of a sessions house for a city or county; the making a new or repairing an old pulpit in a church, or the buying of a pulpit cushion or pulpit cloth; or the setting up of new bells, where none are, or amending of them, where they are out of order.§ And charities are so highly favoured in the law that they have always been more liberally construed, than the law will allow in gifts to individuals. In the first place the same words in a will, applied to individuals, may require a very different construction, when applied to the case of a charity. If a testator give his property to such person as he shall hereafter name to be his executor, and afterwards appoint no executor; or if, having appointed an executor, the latter dies in the life Attorney General v. Smart, 1 Ves. 72. Attorney General v. Jeanes, 1 Atk. 355. Attorney General v. Breton, 2 Ves. 425. Attorney General v. Middleton, 2 Ves. 327. Attorney General v. Parker, 1 Ves. 43. S. C. 2 Atk. 576. Attorney General v. Whittley, 11 Ves. 241. 247. Attorney General v Price, 3 4tk. 108. Attorney General v. Governors of Harrow School, 2 Ves. 552. Duke's Char. 105. Bridg. Duke, 349. 466. Adams v. Lambert, 4 Co. Rep. 104. Smart v. Spurrier, 6 Ves. Jun. 567. Duke, 105. 113. Bridg. Duke, 354. Com. Dig. Charit. Uses. (N. 1.) time of the testator, and no other person is appointed in his stead, in either of these cases, as to individuals, the testator must be held intestate, and his next of kin will take the estate. But to give effect to a bequest in favour of charity, Chancery will in both instances supply the place of an executor, and carry into effect that which in the case of individuals must have failed altogether.* Again; in the case of an individual, if an estate be devised to such person as the executor shall name, and no executor is appointed, or one being appointed, dies in the testator's life time, and no one is appointed in his place, the bequest amounts to nothing. Yet such bequest to charity would be good, and the Court of Chancery would in such case assume the office of executor.† So, if a legacy be given to trustees to distribute in charity, and they die in the testator's life time, although the legacy is lapsed at law, (and if they had taken to their own use, it would have been gone forever,) yet it will be enforced in equity. Again; 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 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. * Mills v. Farmer, 1 Merivale, 55. 96. Moggridge v. Thackwell, 7 Ves. XF. Mills v. Farmer, 1 Merivale, 55. 94. Moggridge v. Thackwell, 7 Ves. 36. Attorney General v. Jackson, 11 Ves. 365. 367. Attorney General v. Hickman, 2 Eq. Cas. Ab. 193. S. C. Bridg. Duke, 476. Moggridge v. Thackwell, 3 Bro. Ch. Cas. 517. S. C. 1 Ves. jun. 464. S. C. 7 Ves. 36. Mills v. Farmer, 1 Merivale, 55. 100. White v. White, 1 Bra. Ch. Cas. 12. Mills v. Farmer, 1 Meriv. 55. 100. Moggridge v. Thackwel!, 7 Ves. 36. torney General v. Berryman, 1 Dickens, 168. Roper on Legacies, 130. At Mills v. Farmer, 1 Meriv. 55. 95. Moggridge v. Thackwell, 7 l'e. 36. White v. White, 1 Bro. Ch. Cas. 12. Therefore, it has been held, that if a man devises 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.* So, if a testator bequeath a sum for such a school as he should appoint, and he appoints none, the Court of Chancery may apply it for what school it pleases. The doctrine has been pressed yet farther; 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. Thus a sum of money bequeathed to found a Jews' synagogue, has been taken by the Court, and judicially transferred to the benefit of a foundling hospital!! § 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. 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 * Attorney General v. Syderfin, 1 Vern. 224. S. C. 2 Freem. 261. recognised in Mills v. Farmer, 1 Meriv. 55. and Moggridge v. Thackwell, 7 Ves. 36. 70. +2 Freeman, 261. Moggridge v. Thackwell, 7 Ves. 36. 73, 74. De Costa v. De Pas, 1 Vern. 248. Attorney General v. Guise, 2 Vern. 266. Casey v. Abbot, 7 Ves. 490. Moggridge v. Thackwell, 7 Vern. 36. 75. Bridg. Duke, 466. Id. and Mills v. Farmer, 1 Meriv. 55. 100. cy près.* Thus a devise of lands to the church 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. So, if a corporation for whose use a charity is de signed 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. So if a devise be to an existing corporation by a misnomer which makes it void at law.§ So, where a devise was to the poor generally, the Court decreed it to be executed in favour of three public charities in London. So a legacy towards establishing a bishop in America, was held good, though none was yet appointed.** And wherea 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. And when objects cease to exist, the Court will new model the charity.‡‡ In further aid of charities, the Court will supply all defects of conveyances, where the donor hath a capacity and disposa ble estate, and his mode of donation does not contravene the provisions of any statute.§§ The doctrine is laid down with * Attorney General v. Oglander, 3 Bro. Ch. Cas. 166. Attorney General v. Green, 2 Bro. Ch. Cas. 492. Frier v. Peacock, Rep. temp. Finch, 245. Attorney General v. Boultree, 2 Pes. jun. 380. Bridg. Duke, 355. † 1 Burn's Eccl. Low, 226. Duke, 33. 115. Com. Dig. Chancery, 2 N. 2. Attorney General v. Combe, 2 Ch. Cas. 13. Rivett's case, Moore, 890. AttorneyGeneral v. Bowyer, 3 Ves jun. 714. West v. Knight, 1 Ch. Cas. 135. Highmort on Mortm. 204. Tothill, 34. Mills v. Farmer, 1 Meriv. 55. White v. White, 1 Bro. Ch. Cas. 12. Attorney General v. Downing, Amk. 550. 571. Attorney General v. Bowyer, 3 Ves. jun. 714 727. § Anon. 1 Ch. Cas 267. Attorney General v. Platt, Rep, temp. Finch, 221. || Attorney General v. Peacock, Rep. temp. Finch, 245. Owens v. Bean, id 395. Attorney General v. Syderfin, 1 Vern. 224. Clifford v. Francis, 1 Freem 330. **Attorney General v. Bishop of Chester, 1 Bro. Ch. Cas. 144. +Attorney General v. Oglander, 3 Bro. Ch. Cas. 160. 243. Attorney General v. City of London, 3 Bro. Ch. cas. 171. S. C. 1 Ves ju. Case of Christ's College, 1 W. Bl. 90. S. C. Amb. 351. Attorney General v. Rye, 2 Vern. 453. and Raithby's Notes. Rivett's case, Moore, 890. Attorney great accuracy by Duke,* 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 copy holder doth dispose of copy hold 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. 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 kin General v. Burdett, 2 Vern. 755. Attorney General v. Bowyer, 3 Ves. jun. 714. Damer's case, Moore, 822. Collinson's case, Hob. 136. Mills v. Farmer, I Merivale, 55. Attorney General v. Bowyer, 8 Ves. jun. 714. *Duke, 84, 85. Bridg. Duke, 355. Duke, 84, 85. Bridg. Duke, 355. Christ's Hospital v. Hanes, Bridg. Duke, 370. 1 Burn's Eccl. Law, 226. Tufnel v. Page, 2 Atk. 37. Tay v. Slaughter, Prec. Ch. 16. Attorney General v. Rye, 2 Vern. 453. Rivett's case, Moore, 890. Kenson's case, Hob. 136. Attorney General v. Burdett, 2 Vern. 755. Jenner v. Harper, Prec. Ch. 389. 1 Burn's Eccles. Lar, 226. and see Attorney General v. Bains, Prec. Ch. 271. |
