thereby republished: and the leases renewed or run out after making the will and before the testator's decease, did not pass by the will, but fell into the residue of his personal estate. That his copyhold estates not surrender ed to the use of his will descended to his heir-at-law. That the annuities given by the codicil ought to be satisfied in the first place out of the personal estate, and that the real estate was only charged therewith in case the personal was deficient. And referred it to one of the masters of the court to enquire the annual value of the premises devised to the charity, in order to enable the heirs-at-law to form a judgment what number of fellows and scholars could be maintained by the endowment; and they were to be at liberty to contract for a piece of ground within the University of Cambridge, whereon to found the college conditionally, in case the charter and license should be granted and it being suggested that certain erections on part of the devised premises were so constructed as to be moveable, referred to the master to inquire the nature of them and state his opinion thereon to the court. And also to inquire into the state of testator's unredeemed mortgages, &c. Under this decree Lady Downing and her representatives acquiesced for upwards of twelve years, and so well convinced was she of the rectitude of it, that she enrolled it herself. But in March, 1781, a bill of review was filed, though the demurrer thereon was never argued, with intent to appeal to the house of lords. Adeemed, In 1798, upon a further discussion of the will, it was 3 Vez. jun.714 held that upon a devise to a good charitable use the heir- Atty. v. Bow at-law is not entitled to the rents and profits accrued, before the devise is, carried into effect. That the general charitable purpose of the testator shall be executed upon the doctrine of cy pres, though, the, particular purpose 5 Vez. jun. 300. Attv. v Bowyer. 1800. 3 Vcz. jun. 714. Atty.-Gen. v. 3 Vez. jun. 726. may fail. In the case of Sutton's Hospital, though the corporation was not in existence, the purpose being good, the heir of the bargainor had no interest in the land.* The crown having granted the charter and license for founding Downing College, and the university now wave ing the account against the heir-at-law, who had been substituted as a trustee further back than six years, the Lord chancellor doubting his authority to confine it, made the decree for the appointment of a receiver and for a commission to distinguish the lands purchased since the date of the will from those which passed by it, and which were intermixed with those devised to the charitable use, upon the terms of their procuring an act of parliament to confirm it. On the same principles, which originally governed this case, the court decided relative to a legacy for establishing episcopacy in America. The late Archbishop Secker gave by will (among other charitable legacies), after the death of the survivor of two relations, which survivor is dead, 1000l. 3 per cents to his trustees, Dr. Stinton (since deceased) and Dr. Porteus, the then Bishop of Chester, to be transferred to the society for the propagation of the gospel in foreign parts, towards establishing a bishop or bishops in bis Majesty's dominions in Amerua; and ordered " that if any charity to which he had "given legacies should no longer subsist at the time of "his decease, or should have been so grossly abused "and perverted that they should think giving any thing or so much to it improper; they should give "what he had appointed for it, or such part of that sum as they should please, to any other charity which they "should 66 The jurisdiction of the Court of Chancery upon informations for establishing charities arose since the reign of Elizabeth. “should approve, whether mentioned by him or not."And by a subsequent codicil reciting a former, wherein he had by a strange inadvertence given a legacy towards the augmentation of poor livings in the diocese of Canterbury, in conjunction with Queen Anne's bounty, which was void by the mortmain act, he did now revoke the same, and direct the same legacy to be applied towards the repairing or rebuilding of houses belonging to poor livings in the same diocese. 444. In regard to the last mentioned legacy, the Attorney- 1 Bro. C. Rep. general (Kenyon) insisted, that a gift of money to be laid out in building upon land already in mortmain, is good in law; and cited for that purpose Brodie v. Duke of Chandos, and Atty -gen. v. Hutchinson.* Mr. Mansfield, for the Bishop of Chester, did not controvert this, but contended; the selection of objects belonged, since the death of Dr. Stinton, to the bishop of Chester alone. As to the other legacy, there being then no bishop in America, or the least likelihood of there ever being one, that he contended was a void legacy, and fell into the residue. But Thurlow, lord-chancellor, said, the money must remain in court, till it shall be seen whether any such appointment shall take place. The case of Downing College was stronger than this: it was to be built at a distant time, and could not be so without the king's license which was long withholden; yet Lord Camden retained the devised estate in the hands of the court. With respect to the selection of objects for the other legacy 1785. * 600l. was given by will to be laid out in rebuilding a parsonage Brodie v. D. of house on a living in Hants. Held good, notwithstanding the statute of mortmain. 3500l. was given by will to build and endow a school in a particular parish, which parish before had land, and the bequest was held good. Chandos, be-. fore L. Apsley, 1775. Atty -Gen. v. Hutchinson, Past. 224. legacy, it must be referred to the master, and proposals of proper objects must be laid before him. This decision, in May, 1785, was agreeable to the former adjudications already mentioned: where there is a want of specification of particular objects to receive a charitable legacy, the executor must dispose of it under the eye of the court; so here he was directed to propose to the master such poor livings in the diocese of Canterbury, as were objects, to partake of the benefit of the legacy left for repairing or rebuilding their parsonage houses. As to the other legacy; between the time of the above decree and the final order (made in the cause, for the payment of that and all the other charitable legacies, which was in May, 1786), Dr. Seabury received consecration as Bishop of Connecticut, from the nonjuring bishops in Scotland, with full powers to preach the protestant faith in partibus infidelium; and others have since received the same holy office from the hands of the Archbishop of Canterbury. The legacy was bequeathed towards establishing a bishop in the king's dominions in America. Dr. Seabury was sent here by the people of Connecticut, who are, with the rest of those colonies, aliened from all allegiance to this crown; and all the postnati born there*, since the definitive treaty, are aliens, and disheritable in England. The converse of Calvin's case, 7 Rep. 1. SECTION SECTION VIII. Of Devises or Bequests for Erecting and Building. 1747, cited in 2 Vez. 185. Erecting and building are often joined, though the Erecting and 1. Building. former expression is used in a legal sense more as synoni- Gastril v Baker, mous with creating or founding; as where a testator gave "all the rest and residue of his estate of what' nature soever to trustees, in order to and towards erect'ing a school for the education of poor boys, in such "place, and in such a manner as the trustees should' "direct and appoint." It was insisted that this was a lapsed legacy by the mortmain act; and that erecting a schoo Imust mean buying and building. But Lord-chancellor Hardwicke said, that erecting included the founding, and consequently the maintenance of the master; which was a different thing from the mere school-place itself; but the end might be obtained by hiring a house, and that for ever; and directed accordingly. " And a similar determination, grounded on the same 2 Vez. 182. Vaughan and principles, was afterwards made in 1751; where Allen, Farrer. the testator, had devised the residue of his real and personal estate in remainder to trustees, to erect in or near York an bospital for the support and maintenance of as many poor old men as the surplus of his estate and effects would admit of, and to put in as many as they should think in their discretion: and Lord-chancellor proper Hardwicke said, The remainder over of the real to the charity is void; which is given up; and, consequently, whenever the death of the devisee for life, without children living at the time of her death, happens, the reversion |