charitable be quests and in the case of one Jones: but if the will points at any par- Construction of ticular charity, as for maintenance of a schoolmaster, or poor charts and adwidows, then the Court of Chancery ought not to direct it to any ministration of other purpose, but such as is pointed out by the will; as if the the fund. devise should be for such school as he should appoint, and he appoints none, the Court may apply it to what school they please, but for no other purpose than a school, although it may be for what school the Court think fit." is At first sight it would appear, that Wheeler v. Sheer (z) opposed to this dictum. In that case, Sir George Wheeler, by will, in 1719, after bequeathing several legacies, gave the residue of his personal estate to his executors in trust, after payment of debts and legacies, and to employ it to such charitable uses as by codicil he should appoint. By a codicil, in 1721, he revoked some legacies, and gave others, and directed that the residue should be applied to such uses and purposes, as by any other codicil or codicils should be directed; but he did not name any charitable purposes. By a second codicil, in 1722, referring to the death of his son George, an executor appointed in his will, he constituted the plaintiff, with his son Charles, the other executor, for the uses, trusts and purposes of his will; but the testator did not name any charitable purpose. In 1723, he made a third codicil, which did not contain any direction as to his personal estate. The question was, whether the King should have the disposal of the surplus of the personal estate to charitable uses; and it was argued that the first codicil was a revocation of the last clause in the will. Lord Chancellor King held the legacy void, observing, "Where a man devises to such charitable uses as he had appointed, that supposes he had made an appointment, though it could not be found; but here it is in his thoughts to do so. By the codicil he confirms the will, and makes the trust of the surplus more extensive; it was to be in trust for a charity, if he directed any." Lord Eldon, in the case of Mills v. Farmer (a), suggests that the ground of the decision might have been, that the codicil revoked the charitable purpose expressed in the will; and, upon that principle, it was clearly law. And he subsequently observed, that the codicil either revoked the will, or it operated to include other objects besides those directed; and that, in any view, the circumstances of that case were such, as to render it no authority to govern the case before him. In the case lastly referred to, James Mills, by will in 1806, (z) Moseley, 288, 301. VOL. II. (a) 1 Mer. p. 86, 97 R No trustees, testator refers to a future se &c. named, but lection of objects by himself, which is not made. quests and ad the fund. No trustees, &c. named, but testator refers to a future se lection of ob. jects by himself, which is not made. Construction of after giving certain pecuniary legacies to his relations and others, charitable be- and appointing the defendant Farmer and another executors, ministration of proceeded thus; "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." Afterwards, in 1807, the testator addressed a letter to his executors, telling them he had sent to Messrs. Robarts and Curtis, a box containing his will and other writings, and therein gave to them and other persons legacies. After the death of the testator, the will and letter were proved. The bill was filed by the next of kin, praying an account and distribution of the residue, as being undisposed of by the will and codicil. Sir William Grant, M. R., before whom it appears the case was little argued, decreed the legacy void for uncertainty; but upon appeal, Lord Eldon overruled the decree, and supported the legacy. In the course of his judgment, his Lordship observed, "It is, therefore, no longer to be contended that a disposition in favour of a charity can be construed according to the rules which are applicable to individuals. This is the view to be taken of the case mentioned by Freeman, that where a testator gives to such charitable uses as he shall direct, and gives no direction, the Court will direct the uses to which it shall be applied. The case of "one Jones," which is there referred to, is not now to be found; but if there is no express decision which has gone precisely the same length with the note in Freeman, it may safely be affirmed that neither is there any decision which has determined that the doctrine there laid down is not law, and it has certainly been cited as an authority in almost every case of a gift to charity that has come into question from those days to the present. Admitting all that Lord Thurlow had said with regard to the decision in Wheeler v. Sheer, it is quite impossible to look into the circumstances of that case, and say that it is a case which at all touches on the doctrine in Freeman. If that doctrine be law, the decision of the Master of the Rolls on the present case cannot be right. If the law be, that the nomination of the particular objects is only the mode, and the gift to charity the substance, of the testamentary disposition, and that the declaration of such a gift is substantially sufficient to give effect to the disposition; it is surely much less strong to say that, where the testator has himself expressed certain modes by which that effect may be given to it, it shall be carried into execution accordingly, than to say that, quests and ad No trustees, to a future se self, but which is not made. because he has expressed an intention of naming certain other Construction of modes, in addition to those which he has named, and has not charitable benamed those others, therefore his intention must fail altogether; ministration of than to say (in short) that because he has contemplated a division the fund. in certain proportions, which he has omitted to render certain, &c. named, but that uncertainty must operate to prevent his general intention, testator refers which is ascertained, from taking effect in any manner whatever. lection of obWould this be to decide according to the authority of established jects by himprecedents? How can uncertainty as to the mode operate to defeat the intention, when the impossibility of a certain mode taking effect at all does not so operate? I repeat that I am sorry for it, because I am very unwilling to differ from any opinion pronounced by so great an authority as that of the Master of the Rolls; but in the present case, I find myself driven to say that, in my judgment, this is a bequest to charitable purposes. It therefore follows, that a scheme must be laid before the Master, regard being particularly had to the charitable institutions denoted by the testator, but not so as to confine the bequest to those only." In this case, it appears, there was not any bequest of the residue to trustees; but upon this Lord Eldon observes, "although the testator does not expressly mention his executors in the clause bequeathing the residue, he has clearly named executors in the will, and the direction contained in the residuary clause can be understood only as imperative upon his executors" (b). (b). It may further be remarked upon the above case, with reference to the mode of distribution by a scheme to be laid before the Master, that in this case certain objects are specified in the will, as objects of charity; and it forms one of the class of cases, to be noticed in a future page of this chapter, in which the Court assumes the power of pointing out the mode of distributing the fund by a scheme: it seems however to establish the dictum in Freeman to its full extent (c). The reader will distinguish this case from that of Vezey v. Jamson (d), stated in a future page (e), wherein the bequest was decided to be void for uncertainty; the bequest not being for an exclusive charitable purpose, but giving to trustees a discretion, either to dispose of it in charitable or benevolent purposes, public or private. (b) 1 Mer. p. 96. (c) See Simon v. Barber, 5 Russ. 112. (d) 1 Sim. & Stu. 69. charitable bequests and ad Construction of 2. We proceed to the second class of cases, wherein there are no trustees or persons to select originally named; but the ministration of nature of the charity is described by referring to the objects of it generally, while no particular individuals of the descript class are selected. Here the Court will support the legacy, and appoint the particular objects of the descript class to be benefited. the fund. 2. No trustees named, but tes tator refers to a class of objects, but no individuals of the class selected. Thus, in Attorney General v. Clarke (f), George Cranstown, by his will gave the interest of 4,2007. Bank annuities, to the poor inhabitants of St. Leonard Shoreditch; and the question was, whether the legacy was void for uncertainty in the description of the legatees; but Sir Thomas Clarke, M. R., gave his opinion in favour of the charity, and said, "The Court has done so in many cases, where the expressions were much more general and uncertain; that in those cases the Court forms a judgment, upon taking all the circumstances into consideration, and inclines in favour of the disposition, ut res magis valeat. In the case of Attorney General v. Rance, 18 July 1728, a legacy was given to the poor: there were no words in the will, which discovered what poor the testator meant; but it appearing, that the testator was a French refugee, the Court directed the legacies to be given to the poor refugees. The Attorney General v. Browne, 18 November 1749; the words were very general; but his Honor did not mention them. The words in the present case are not so uncertain, as in those cited. The word inhabitant bears a very general sense, and may extend to everybody living in the parish. But as it could not be intended that the poor inhabitants, which are relieved by the parish should have benefit of this legacy, which, in effect, would be giving to the rich, and not to the poor, his Honor declared that the distribution of the legacies was to be confined to the poor inhabitants of St. Leonard's Shoreditch, not receiving alms: and ordered a scheme to be laid before the Master for such distribution. In the case of White v. White (g), a testatrix bequeathed 3,000l. stock for putting out "our poor relations" apprentices. Afterwards, by a codicil, she confined it to two families. Upon a bill to have the trusts of the will carried into execution, it was contended for the defendant, that this was not a charity; as if it were to the poor in general, being merely a legacy to poor relations; and if not to be supported as a charity it was void, exceeding the limits allowed by law. But Sir William Grant, M. R., decreed otherwise, observing, "Are not such cases supported as charitable bequests and ad. charities? There was a case of this kind, Mocatta v. Lousada, Construction of lately before me, where a great number of Jews were the objects. I may execute it as far as I can. I do not know why those who ministration of are ready, may not be put out apprentices." The decree directed such of the objects, as were ready, to be put out apprentices; and the fund to be laid out from time to time, with liberty to apply (h). the fund. No trustees of objects referred to, but no individuals named, a class A similar objection to that taken in the last case was made in selected. the Attorney General v. Price (i), but it did not prevail. In Powell v. Attorney General (j), James Pindleton, a native of Liverpool, by will in 1802, bequeathed the residue of his estate "to the widows and children of seamen belonging to the town of Liverpool," and appointed the plaintiff his executor. The bill filed against the Attorney General and the testator's next of kin, for the direction of the Court as to the application of this residue, charged that there was no existing charitable institution for the relief of widows and children of seamen, belonging to the town of Liverpool; but that there were almshouses in the town for widows of seamen, erected by virtue of different charitable bequests, and a hospital under an Act of 20 Geo. 2, c. 28, for the relief of maimed and disabled seamen, and the widows and children of such as should be killed, &c., in the merchants' service. It was insisted by the defendant the next of kin, that the bequest was void for uncertainty; and he claimed the residue as undisposed of. By the decree at the hearing, it was referred to the Master to inquire, whether there were any, and what, charitable institutions for the benefit of the widows and children of seamen belonging to the town of Liverpool. The Master, by his report, stated several charities for poor seamen's widows, and others for the poor of Liverpool generally; besides the hospital mentioned in the bill: and one under the will of Elizabeth Cain, dated the 8th of June 1778, whereby she directed the residue of her estate to be continued at interest, or placed out on Government securities, at the discretion of her executors; and, after their death, of the rectors of Liverpool for the time being; the interest to be paid and distributed unto and among such poor sailors, widows, and orphans, inhabitants of Liverpool, as should, in their judgment, be deserving objects of charity. Upon the hearing for further directions, the question was, first, whether it was a (h) For legacies to poor relations, see Vol. I. c. 2, s. 5. (i) 17 Ves. 371, supra, p. 107. |