Testamentary dispositions to charity not within the stat. of 9 Gco. 2, c. 36. Money to be applied in meliorating land in mortmain, thereto. mortmain could be found for that purpose; and that case is undoubtedly an authority for that. But this case appears to have been overruled by a great number of subsequent decisions." His Honor, after discussing the case before stated, proceeded thus: "In this case, the alternative is to build or purchase. It is admitted, a bequest to purchase would be void; and it is determined by all those cases, that a bequest for the purpose of and exceptions building a chapel is equally void. That bequest, therefore, falls to the ground. The next question arises upon the direction, that if any overplus remains, after the purchasing or building the chapel, it shall go towards the support of a faithful gospel minister, not exceeding 201. a year. It is contended by the next of kin, that this is a bequest dependant upon the former; and that failing, this must likewise fail, upon the authority of the Attorney General v. Goulding (i). The late Master of the Rolls seemed to doubt a little the doctrine of that case, in the Attorney General v. The Earl of Winchelsea (j). But afterwards, in the Attorney General v. Boultbee (k), he approved of that doctrine, and acted upon it. It is then contended, that this is not dependant upon the other purpose; but it is for the support of a minister generally, not at that chapel. I am clearly of opinion she must have meant a minister in that chapel which she intended to be purchased. It would be quite absurd to suppose she intended no provision for the minister of her own chapel; but that a provision should be made for the minister at some other chapel, to be built by a stranger. Therefore, upon the authority of the Attorney General v. Goulding, and the Attorney General v. Boultbee, that bequest must fail, as the chapel is not to have existence." So also, a bequest to individuals or a society not holding land in mortmain, provided they would furnish lands for charitable purposes is void; as in the case of Attorney General v. Davies (1), wherein Thomas Davies, by will dated 1801, bequeathed as follows: "The sum of 5,000l. more or less, as it may be wanted, to build twelve almshouses, purchase the ground, six for poor men, six for poor women, economy and convenience observed in the structure:" and then he gave the remainder of his property for the use of the Orphan School in the City Road, under the direction of the committee of that school for the time being, provided they would furnish a piece of ground near the school to build charity not within the stat. of 9 Geo. 2, c. 36. Money to be applied in me. liorating land and exceptions thereto. the aforesaid houses on. Upon the question, whether these dis- Testamentary positions were within the statute of 9 Geo. 2, c. 36, Sir W. Grant, dispositions to M. R., said, "It must be admitted, that if the will stopped with the bequest of the 5,000l. it would be wholly void; for the testator gives it expressly to purchase land; and even if he had said nothing about purchasing, a bequest of money to build almshouses would be void according to the latter determinations; in mortmain, as the Court will not imply an intention of which the will affords no trace, that if the land should be given, then, and then only, the building shall take place; and if the original intention be a purchase, an offer to give will not cure it; for in the Attorney General v. Nash (m), the trustees had purchased land with their own money, and they offered to give the land, yet the Court refused to give it effect. But it is said in this case, that in the subsequent part of the will the testator has relinquished the first intention of purchasing, and has made a provision for erecting almshouses upon ground to be given by the committee of the Orphan Hospital, who, by the information, offer to give this ground. Therefore, it is said, the charity may be executed according to his latter intention, without any violation of the Act. But the testator proposes to the committee a gift, and offers them the residue, as a consideration for their furnishing land for his almshouses, and taking the management of them and his affairs. He does not mean to give them any part of the residue unless they supply the ground for his almshouses. He says, 'I will give your charity money if you will find land for mine.' What is this but laying out money in land? It may be more or less advantageous to them, but still it is a mere bargain; money offered if land is given in return. It is an absurd distinction, that a testator shall not give land to a charity, but he may give money in consideration of another's giving land for a charity. If I am right in holding, that this is a bequest of a residue to be laid out in land, two consequences will follow: 1st. That such bequest of the residue is void. 2dly. That the bequest for erecting almshouses is void, because they are to be erected only, by what I consider a purchase of land. It may be, if the whole scheme might be carried into effect, that the Orphan School might have a benefit, for their might be a surplus; and only what is equivalent to the land for the almshouses is to be applied. But it is impossible to make an apportionment, and to declare the bequest of the residue void for a part and good for the rest. (m) 3 Bro. C. C. 588, supra, p. 1169. Testamentary If the principal fails, the subsidiary part must fail along with it. dispositions to The wish is to connect his almshouses and their school, and to charity not within the stat. benefit the latter because of the benefit to be expected from their school. It is only on account of their contributing to his plan that he gives to them. This bequest of the residue is therefore wholly void" (n). The decree was afterwards confirmed by the Chancellor, who, with reference to the residue, observed, that if of 9 Geo. 2, c. 36. Money to be applied in me lioratiug land in mortmain, thereto. and exceptions the primary gift fails, the secondary gift being totally uncertain, and fluctuating from time to time, the whole must fail. Money given to build with a direction not to purchase. To the preceding cases, those of Attorney General v. Munby (0), and Pritchard v. Arbouin (p) before stated may be added, and to which the reader is referred. But, though a bequest of a sum of money to erect a school, generally is void, yet where there is an express direction that land shall not be purchased, the bequest will be supported. Thus, in the case of Henshaw v. Atkinson (q), Thomas Henshaw by will, in 1807, bequeathed as follows: "Whereas it is my wish and intention that a Blue Coat School be created at Oldham, and a Blind Asylum established at Manchester, under the management and direction of certain trustees to be hereafter appointed, I hereby give and bequeath 20,0007. in trust, to the said trustees, to each of the said charities, subject to such uses, limitations and conditions as shall afterwards be determined for the government thereof; but I direct that the said monies shall not be applied in the purchase of lands, or the erection of buildings; it being my expectation that other persons will, at their expense, purchase lands and buildings for those purposes. And as for and concerning all the rest, residue and remainder of my personal estate, I give and bequeath the same, in trust, to the trustees of the said intended charities, to be equally divided, and for the equal benefit of each of the said charities." The testator appointed John Atkinson and Joseph Atkinson, (two of the defendants) and the plaintiff Sarah Henshaw, executors and executrix of his will. By a codicil, the testator gave 20,000l. more to the Blue Coat School, and empowered his executors to fix the establishment of the Blue Coat School at Manchester, instead of Oldham, if they thought it more convenient. By another codicil, he nominated trustees for the school, with power to fill up the number from (n) See also Chapman v. Brown, (0) 1 Mer. 327, supra, p. 1159. and Giblett and Others v. Hobson, 5 Sim. 651. (q) 3 Mad. 306. charity not of 9 Geo. 2, direction not to time to time and then proceeded thus: "It is my will and inten- Testamentary tion that the sums which I have bequeathed, of 40,000l. to the dispositions to Blue Coat School, and 20,000l. to the Blind Asylum, making within the stat. together 60,000Z., shall continue in the house or firm at Oldham, c. 36. in conformity to and during our articles of partnership, and for Money given to such longer time as my executors consider the principal and build with a interest of the said sum secure for the benefit of the said charities; purchase. it being my will, that the interest of the said 60,000%. be paid annually to the trustees of the said charities, for the maintenance and support thereof." And the testator made a fourth codicil to his will, 27th July, 1809, but it was not executed and attested as required for passing real estates, or for effecting a revocation of a devise of real estates. This paper writing was as follows: "1, Thomas Henshaw, do make this codicil to my last will and testament, and hereby revoke and make null and void my legacy of the close of meadow land, called Frankhill, which I have devised to James Barker, it being my intention to appropriate the said close for the building of a Blue Coat School, which I have endowed by my last will." The question was, whether the bequests for the establishment of a Blue Coat School and Blind Asylum, were void by the statute, 9 Geo. 2, c. 36. Sir John Leach, V. C., in giving judgment, said, "It is now perfectly well settled, that if a testator gives personal property to erect and endow a school or hospital, it must be considered, unless it be otherwise declared, that it was his intention that land should be acquired, and buildings made, as necessary parts of his purpose; but here, the testator has expressly directed that no part of the money bequeathed is to be so applied." His Honor then referred to the clauses in the will, and the bequest in the second codicil respecting the monies bequeathed remaining on the firm at Oldham, and concluded thus: "The trustees have, therefore, a title to this annual payment from the death of the testator, and must apply it in the maintenance and support of the charities, although the expectations of the testator, with respect to the purchase of lands and buildings by other persons, are wholly disappointed. In fact, these expectations seem to have failed the testator in his lifetime; for by his fourth codicil he expresses an intention, not perfected, to appropriate a particular close for the building of the Blue Coat School. These charities must therefore be established, and when the accounts are taken, the particular manner of the administration of them will come to be considered." Testamentary charity not within the stat. of 9 Geo. 4, c. 36. Money given to build with a direction not to purchase. 10. It would seem also, that money bequeathed generally to dispositions to provide a school, or other building for charitable purposes, is a valid bequest, although there be not any direction not to purchase; since such school-house or other building may be hired. The case of Cantwell v. Baker is thus cited in Vaughan v. Parker (r), before Lord Hardwicke, C., 31st March, 1747. Testator's representatives brought a bill for residue of personal estate undisposed by will against the trustees, who were also executors, and who claimed it for a charity in the will in these words: "I give all the rest and residue of my estate, of what nature soever, to trustees, in order to and towards erecting a school for the education of poor boys in such a place, in such a manner as the trustees should direct and appoint." It was insisted to be a lapsed legacy by the Mortmain Act, and that erecting a school must mean buying and building; and it was added by the counsel for the charity in the principal case arguendo, and not denied by the Court, "Your Lordship held, that erecting included the founding, and consequently the maintenance of the Master; which was a different thing from the mere school place itself: but that the end might be obtained by hiring a house, and directed accordingly; and this for ever." In Johnston v. Swann (s) the testator bequeathed 7,100% to be invested in the funds, and the interest and dividends to be applied in paying the expenses of providing a proper school-house for the instruction of twenty poor girls: it was insisted on behalf of the charity, that the testator meant the school-house should be hired; and that lands might be hired for a charitable purpose on the authority of the case last cited. Sir John Leach, V. C., decided in favour of the charity; observing, the question was, whether, to execute the expressed purpose of the testator, land must be purchased for erecting a school. The testator has directed only, that a proper school-house should be provided, which may be by hire; and it is some evidence of his intent that land should not be bought, that the trustees are only to apply the dividends, and no part of the principal, to the expense of providing a school-house. It is said, he meant the charity to continue for ever; but this intent may be executed, without necessity for the purchase of land. But in Attorney General v. Hodgson (t) Sir L. Shadwell, V. C., |