made by the executors to the poor, the extent of which is almost unlimited, the general residue is to go to charitable purposes; and must be the subject of a scheme before the master.

Where a bequest is to charitable purposes, the disposition must be in that mode; but where the object is charity, without a trust interposed, it must be by sign manual; that is the distinction adopted in Moggridge v. Thackwell, (ante. 253).

SECTION X.

Of the Doctrine of Cy Pres.

THE result of the doctrines already established has The doctrine of given rise to a principle in the court of equity, which Cy Pres. eminently marks the liberality of that court: for if the testator has expressed his intention with such ambiguity as that no precise rule can be laid down for executing it, or if objects are wanting to receive his bounty, the court will take every practicable means to carry his design into effect, as nearly as it can be constructed. The principle 2 Ves. jun. 360, which governs all these cases is, that presumptions are Ambl. 422. to be made in favour of a charity. Pickering v. Lord Atty. v. Clarke. Stamford. Thus, a legacy was devised" to the poor," and the testator being a refugee, the court gave it to poor refugees.

A trust of real estates, created by deed in 1653, to establish a habitation for the vicar of the parish, and for maintaining, in a school-house to be erected, a master and mistress to teach the children of that parish. The trustees acted upon a declaration without date or signature,

X 4

but

584.

1762.

Ves. jun. 380.

1794.

Atty. v. Boult

bee.

Cy Pres,

but known to have been written by the donor, whereby they were directed to recommend a parson. One of the trustees informed the chancellor of the death of the incumbent, and desired him to wait a short time for their recommendation. His lordship waited two months, and then presented: they refused to admit him, and filed their bill at the relation of the vicar. Their delay arose from the absence of one of them.

The master of the rolls, Sir R. P. Arden, established the declaration as conceived and acted upon by the trustees, as contemporary with the constitution of the trust. By the first instrument every thing was left at the discretion of the trustees, except the habitation of the minister; and he was to have only such portion of this charitable gift as the trustees should think fit-he had a right to give these estates as he should think fit. He has first marked out a general charitable purpose, then directs this specific application of part, subject to the proviso; and if there is no such approbation of the trustees, then to some other charitable uses. The absence of a trustee

was no ground for the delay.

As to the doctrine of cy pres, as applied to charities, this sensible distinction has prevailed; the court will not decree execution of a trust of a charity in a manner different from that intended, except so far as they see that the intention cannot be executed literally-but another mode may be adopted consistent with the general intention, so as to execute it, though not in mode, yet in substance. If the mode becomes by subseqent circumstances impossible, the general object is not to be defeated, if it can be obtained, as in Attorney v. Goulding-but the court has said, where the general intention may be exe cuted, it shall. In the case of Brantham and East Bargold, the testator directed bread to be distributed to poor

persons

persons attending divine service, and chaunting his ver- Cy Pres. sion of the psalms: they could not be chaunted, because not authorised. But I thought his general object was to give the poor people the bread, and the chaunting the psalms was only accessary, because he thought his version as good as any other. Apply these principles to this case, Sir F. Nethersole had two objects; the first was a general charitable object, and very proper; an anxious desire to provide what he specified in his declaration, what he thought a competent maintenance for the vicar. There was also another object. The question is, whether that was equally important, and was annexed to the first, so that they must stand and fall together. It was to secure to himself and his trustees the recommendation or approbation at least of the person nominated. If both these purposes can be effected, they ought, &c. &c. ; but they have not done all they ought. I do not believe they intended to defeat the testator's bounty; but they had it in contemplation to make this recommendation when it suited their convenience-that is the degree of negligence. It was said for the defendants, the crown ought to have waited six months: that is, to convert them into patrons. They have only the nomination to the great seal, and must give the chancellor notice, for he is responsible for the person presented. The six months are with respect to a real patron. He loses his presentment if he does not present in six months after the death, not after the notice. The chancellor waited two months, and they permitted the presentation to be followed by institution; the person giving up his other prospects in life, and coming into the parish. It would be extraordinary if this should disappoint the material object, and this person should not have the benefits intended for the vicar. Under the circumstances this court may over-look them, and

Cy Pres.

think him entitled, though the condition is not complied with.

The court will not permit the general intention to fail for want of circumstances annexed, in which the fault or neglect of the parties cannot take effect. Therefore this vicar was decreed to be entitled to the benefits intended, not upon the idea, that if the trustees had recommended in proper time, and that recommendation had not succeeded, that then he would have been entitled; but upon this, that the general object was, that there should be a good minister; and there was a secondary intention, that he should come in with the approbation of the trustees. The question is whether under these circumstances, I do not answer his intention better by giving this benefit to the vicar, though from the unfortunate neglect of the trustees, he came in without their recommendation. I am of opinion they ought to have taken more pains than they did, and their neglect shall not defeat the general intention. Afterwards referred to lord-chief-justice Eyre, sez. jun. 220. and lord-chief-baron Macdonald, and confirmed.

1796.

3 Vez. jun.141. Atty. v. Whitchurch, 1796. Rolls.

Ante. 168.

A devise of four alms-houses and stock, the dividends to the four persons intended to dwell in them.

Master of the rolls said, It was contended that, although it must be admitted that the gift of the four tenements is void, yet the other part, so far as it concerns the stock appropriated for the maintenance of the poor persons, may be supported, as not being essentially connected with or belonging to it, but as denoting a general intention, which, though the rest fails, may remain and be fulfilled.

With regard to the principles upon which this court has administered charities, where the same cannot be carried literally into effect, I refer and adhere to those principles which I laid down as the rule by which I conceive this court ought to govern itself, in Atty. v. Boult

bee.

1 Vez. jun.380,

bee. A charitable bequest cannot be defeated by the Cy Pres. negligence or default of the person to administer it, or by the impossibility to give effect to every circumstance. If the general intention appears consistent with the rules of law, and not against the mortmain act, it shall be carried into effect, without regard to the secondary objects, which the testator might have intended. The doctrine of cy pres, which has been so much discussed in this court, and by which I meditated the rule to execute the charitable intention as nearly as possible, however wildly and extravagantly it has been acted upon in former cases, is by late decisions, particularly since the statute, administered in this way. The court will not administer a charity in a different manner from that pointed out, unless they see, that though it cannot be literally executed, another mode may be adopted, by which it may be carried into effect in substance, without infringing upon the rules of law. If the mode becomes impossible, the general object, if attainable, shall not be defeated. Therefore, though I agree with Lord Northington in Amb. 614. Atty. v. Tyndal, that this court is not to study to evade the statute, with that restriction I agree with Lord Hardwicke, in whose time the statute passed, and to whose decisions upon this statute and upon all other points I shall

pay

the greatest respect. At the same time I must admit, that the authority of Atty. v. Bowles, has been shaken by subsequent authorities; and it is not one of those de- 2 Vez. 547. sions of his that I can entirely concur in; I mean that part of it, where, admitting that the object was to erect a building upon land not then given, he throws out, that if land should be afterwards given, the statute would not be evaded by applying the money to erect a building upon it. That is giving land in mortmain; for it is another mode of purchase, and holding out a temptation

to