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charitable be

the fund.

Charitable objects named, and fund more than sufficient.

Construction of of the children of the school; and also yearly, for ever, apply quests, and ad- the surplus of the dividends, &c., if there should be any after such ministration of payments, in clothing and putting out apprentices to any trade, business, or occupation, which should be thought proper, two children of the parish of Ravenstone, and one child of the parish of Little Woolstone: and he directed that his trustees should meet at least once a year at Ravenstone, and inspect the management of the school, and settle and audit the accounts of the charity; and he appointed the defendants Dering and Hurst executors. The testator died in October 1785, possessed of a considerable personal estate, without leaving wife or children, or any other next of kin, than the defendant Mrs. Chapman his only surviving sister, and the defendant R. Daniel, his nephew. The information prayed, that the charitable bequests might be established, and that after taking the usual account of the testator's assets, the residue or clear surplus of the personal estate might be ascertained, and paid to the defendants the trustees, to be placed at interest upon government securities in their names; and that the dividends might from time to time for ever be applied for the charitable purposes mentioned in his will; and if it should appear that such dividends were more than sufficient to pay the annual allowance of 127. to a schoolmaster, and the yearly sum of twenty shillings for the purchase of books for the use of the school, and the expenses of clothing and providing apprentice fees for the three boys every year; then that the charity might be enlarged, in such manner as the Court might think proper, and that the interest of the whole residue and clear surplus of the testator's personal estate might be applied according to the directions in his will, or as near thereto as the nature of the case and the circumstances would admit. The defendant, Daniel, one of the next of kin, insisted, that the surplus of the testator's estate was much more than sufficient to answer all the charitable purposes; and that a considerable part of the residue consisted of mortgages, or some other real securities; and that, so far as the disposition of the residue related to such securities, the same ought to be declared void; and he submitted whether, as one of the next of kin, he was not entitled to a distributive share of such residue. The other next of kin, Mrs. Chapman, disclaimed having any interest in the residue, being desirous that the charitable bequests should be established. The executors admitted that the residuary personal estate was of a considerable amount, part of which consisted of two mortgage securities, one of 2004, which had been paid in since the testator's death, and another of 2,000%. then

charitable be

quests, and ad

ministration of

the fund.

Charitable objects named, and fund more

than sufficient.

outstanding. The trustees submitted, that as the residue was Construction of more than enough to answer the precise number of objects particularized in the will, the charity ought to be enlarged. The cause was heard in June, 1790, when it was referred to the Master to take the usual accounts, and to state of what the testator's personal estate consisted; subsequent to the decree, and prior to the report, Mrs. Chapman assigned all her interest in the mortgages, and the residue of the testator's estate, to the trustees for the benefit of the charity; in consequence of which a supplemental information was filed, and the cause came on again in November, 1791. In giving judgment, Lord Alvanley, M. R., observed: "The question is, whether the whole surplus of his personal estate is not intended to go to the charitable purposes mentioned in the will, though more than sufficient to answer the exact number of objects there specified. The real intention of the testator is perfectly clear, that he meant to give the whole surplus. It has been said, that the distinction is, that where there is a definite object, and that cannot take place, the Court will not look for another object, but let the property go to the next of kin, or the heir-at-law:" in support of which observation, his Honor cited the cases of Attorney General v. The Bishop of Oxford (h), and the Attorney General v. Goulding (i), and then continued; "But wherever the intention has been, to dispose of the whole property to certain purposes, as in the early case of Thetford School (j), and numerous subsequent authorities, the whole has been applied: the intention has been considered as such, and it has been only inferred, that the testator has been mistaken merely as to the quantum. It has been observed, as a strong mark of his intention, that by giving the apprentice fees to three objects, he has marked out the limits of his bounty, and that the confining it to that number will be a sufficient compliance with his intention: but according to the disposition of this residue, his intention could not be limited to three boys, and if it would pay more, the testator has shown an intent, that the surplus beyond that must be applied in the same manner; therefore, I am of opinion, it must be applied to the charitable purposes mentioned in the will: perhaps it may not turn out to be much more than sufficient, but if it should, the next of kin may then come to the Court, as in other cases, where there has been an increase of rents and profits (k).

(h) Supra, p. 1221.

(i) Ib. p. 1222.

(j) 8 Rep. 130.

(k) Also Att. Gen. v. Skinners'

Construction of charitable be

quests, and ad

the fund.

It seems to be settled by the decision in the case of Attorney General v. Bowyer (1), and the authorities there referred to, that ministration of if lands be devised to a use good in itself, though not capable of taking effect immediately, as to found a college, the charter and license of the Crown being necessary, the intermediate rents between the death of the testator and the period of founding the college, will not belong to the heir, as a resulting trust, but will be considered the property of the college (m).

Charitable objects named,

and fund more

than sufficient.

But if part of the produce of lands be devised to a charity, and the residue of the produce to other persons, so much as was given to the charity will belong to the heir (n).

In the preceding class the whole fund was applicable to charitable objects named, and, being more than sufficient, the Court of Chancery undertook its application, though not according to the express terms of the testamentary disposition, yet in furtherance of the general intention of the donor: the following case, forming one of another class, is distinguishable in the circumstance, that a specified amount, devoted by the testator to the charitable purpose, is charged upon a larger fund, the surplus of which was given to other objects; and the fund so charged having greatly increased in value, the question was, whether the amount of the charitable gift should not be increased in proportion to the increase of the annual value of the property upon which it was charged, and which depended upon the construction of the bequest.

The case is that of Yordon's charity (o), where the testator, by will, in 1468, devised an estate to the Fishmongers' Company and their successors, and willed that the wardens of the company should buy and deliver 138 quarters of coal, or else money to buy with the same coals unto the same number, after the price of eightpence per quarter, which at the aforesaid price amounted to the yearly sum of 47. 12s.: the testator then directed the coals to be distributed in certain proportions to certain poor inhabitants of parishes named; and if the coals were bought for less price, then more coals should be given: and he gave the wardens

Company, 2 Russ. 407; Att. Gen. v.
Mercers' Company, 2 Myl. & K. 654,
and see In re Upton Warren, 1 Ib.
410;
Att. Gen. v. Holland, 2 Yo. &
Coll. (Ex.), 683, and the cases cited
in the next sub-sect. 8.

(1) Supra, p. 1217.

(m) See also Att. Gen. v. St.

Catherine's Hall, 1 Jac. 380.
(n) Gibbs v. Rumsey, 2 Ves. &
Bea. 294, supra, p. 455.

(0) 5 Sim. 571; also Att. Gen. v. Skinners' Company, Ib. 596; Att. Gen. v. Corp. of Wisbech, 6 Jurist, 655.

charitable bequests, and ad

the fund.

than sufficient.

of the company and their successors forty shillings yearly for Construction of their trouble in the distribution, (that is), each of them 6s. 8d.; adding, "whatsoever leaveth over mispent of the said residue, I ministration of will that it be disposed yearly and for evermore, to the reparations maintaining, upholding and sustaining of the aforesaid rents, and Charitable objects named, to the most necessary and profitable use of the said company. The and fund more price of coals having greatly increased, the company distributed among the poor of the specified parishes sums amounting to 47. 12s., instead of coals: the rents of the estates increased, and the ques tions were, 1st. whether the company were not bound to distribute coals only; and 2ndly, whether, if they had the option of distributing either coals or money, the 47. 12s. ought not to be increased in proportion as the rents of the estate had increased. Sir L. Shadwell, V. C., was of opinion, that the testator intended to give the company the option of giving either coals or money, not exceeding the 47. 12s., but that there was nothing in the will which indicated an intention that the poor should take more than that sum. Upon the second question, his Honor considered the principal case not within the Thetford School case (p), and Arnold v. Attorney General (q), for there the whole estate was given for charitable uses; but that in the principal case, subject to the definite sum mentioned, the surplus should go for the benefit of the company (r).

But in the case of the Attorney General v. The Coopers' Company (s), a definite proportion only of the income of a property was given to the company, and Lord Langdale, M. R., held, that all the objects of the testator's bounty were entitled to participate with the company in the increased income. In that case, the testator devised a house to the Coopers' Company upon condition of their maintaining a school at R., and the rent, which he estimated at 117., was to be bestowed upon certain objects in different sums amounting to 81, and among them 5s. to the company, and then he gave 37., the remainder, to the company to put in their common box, towards repair of the house, if need be. The rents increased to 757., and the questions were whether, after paying the sums to the charitable objects to the extent of 81. a year, the company were not entitled beneficially to the surplus, or took it subject to the charitable trusts. Lord Lang

(p) 8 Rep. 130.

(9) Shower, P. C. 22.

(r) See also Att. Gen. v. Gascoigne, 2 Myl. & K. 647; Att. Gen. v. Brazen Nose Coll. 2 Cl. & Fi.

VOL. II.

U

295; Att. Gen. v. Fishmongers' Co.,
2 Beav. 151, 5 Myl. & Cr. 11; Att.
Gen. v. Grocers' Co., 6 Beav. 526.
(s) 3 Beav. 29,

charitable bequests, and ad

the fund.

Charitable be

quests not within the jurisdiction of the Courts of Chancery.

Construction of dale, M. R., held, that the company took a beneficial interest in the property, but that, as the testator meant an apportionment ministration of of the whole rent, they were entitled only to three-elevenths subject to the repairs, and were trustees of the remaining eightelevenths for the charity. His Lordship, after the hearing, thus stated the principles upon which the Court acted in the classes of cases now under consideration. "If the testator clearly declares an intention of devoting the whole income of a property to charitable purposes, then, although he does not, in specifically directing the application of portions of it, exhaust the whole income, still the general intention that the whole shall be applied to charitable purposes will prevail; and, on the other hand, although he does not make any such general declaration of devoting the whole to charity, but gives each and every portion of the whole income at the time to some charitable purposes, and by that means exhausts the whole; then, if the income should afterwards increase, the increase will also be applicable to charitable purposes" (t).

8. Where charity not within

A decision similar to the preceding was made by his Lordship in the case of Attorney General v. The Drapers' Company (u).

8. We here lastly observe, that where the charity is to be the jurisdiction administered out of the jurisdiction of the Court of Chancery, of the Court of it will not take into its own hands the administration. Chancery.

In the case of the Provost, Bailies, &c., of Edinburgh v. Aubery (v), the devise was of 3,500l. South Sea annuities to the plaintiffs, to be applied to the maintenance of poor labourers residing in Edinburgh and towns adjacent. Lord Hardwicke, Chancellor, was of opinion, 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 his Lordship directed that the annuities should be transferred to such persons as the plaintiffs should appoint, to be applied to the trusts in the will. The same course was adopted in the cases of the Attorney General v. Lepine (w), and Minet v. Vulliamy (x); where the charity was to be distributed in Switzerland; and in the subsequent case of Emery v. Hill (y), where the charity was to be administered in Scotland.

(t) See Att. Gen. v. Christ's Hos-
pital, 4 Beav. 73, and Att. Gen. v.
The Merchant Venturers' Society, 5
Beav. 338, (now under appeal).
(u) 4 Beav. 67.

(v) Amb. 236.

(w) 2 Swanst. 181.

(x) Reported from Reg. lib. in

1 Russ. 113.

(y) 1 Russ. 112.

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