413. Smart The question is, not what are the qualifications most Atty. v. Parker. suitable to the rising generation of the place where the Scott. charitable foundation subsists, but what are the qualifi- 1 Ves. 43, 72, cations intended. If upon the instruments of donation the charity intended was for the purpose of carrying on free-teaching, in what is called a free grammar-school, I am not aware, nor can I recollect from any case, what authority this court has to say the conversion of that. institution, by filling a school intended for that mode of education, with scholars learning the German and French languages, mathematics, and any thing except Greek and Latin, is within the power of this court. The proposition is quite different, where the directions prayed are founded in a purpose to promote the direct object of the charity; and where boys are to go to this school, who are not to learn Greek and Latin, but are to have a particular part of the school set apart, and the funds applied for a different purpose from that intended by the donors, which may be very useful to the rising generation of Leeds, but cannot possibly be represented as useful to this charity. The difficulty is insuperable. It is more agreeable to principle to increase the emoluments of the master and usher, for carrying on the purpose of the institution, than to bring in masters to whom the object of it does not point. Upon what principle does the master set off the prejudice those other seminaries would sustain, against the benefit of the inhabitants of Leeds? If according to the plan, every boy to be brought to the school was to be taught the learned languages, and the circumstance that these other sciences were to be taught, would induce persons to send boys to the school to learn Greek and Latin also, that purpose might have a tendency to promote the object of the foundation. But if these plans are to be distinct, the institution will be singular; hazarding hazarding the destruction of all utility whatsoever. This is a scheme to promote the benefit of the merchants of Leeds. To make this school, as a Greek and Latin school, useful, there must be, what the authors of the charity express, a learned man, capable by his life and doctrine of giving the most useful information. His lordship then declared, upon the evidence, that the foundation was a free grammar-school, for teaching grammatically the learned lauguages, according to Dr. Johnson's definition, upon circumstances, without variation, in fact since the year 1553, as better interpreters of the nature of the charity than any criticism he could form, or construction upon the instruments. And he held it not competent to that court, as long as it could find any means of applying the charity-funds to the charity, as created by the founder, upon any general notion that any other application would be more beneficial to the inhabitants of the place, to change the nature of the charity. A case may arise in which the will cannot be obeyed, but then the fund will not go to the heir; upon the principle that an application is to be Bp. Hereford v. made, as near as may be; growing out of another principle, that you are to apply it to the object intended, if Adams. 7 Ves. jun. 324. you can. It must appear by the master's report, that the court must despair of attaining that object; or the court cannot enter into the question, in what other way the fund is to be applied. Upon this declaration of the charity, it was referred to the master to review his report as to any plan; in which it would be open for him to consider what was proper aud necessary, not for the benefit of the inhabitants of Leeds, but for the benefit of the charity-declared to be such upon the record. SECTION SECTION V. Of Incumbrances. Or of any Estate or Interest therein, or any ways Charged or Incumbered by any Person whatsoever, or of any Charge or Incumbrance affecting the same.] Previous to, and up to the time of passing this statute, the courts of law and equity were accustomed to maintain not only devises of land, but of rent-charges, annuities, and other incumbrances, in favour of charities: the first case which shall be noticed took place in Easter term next before the date of the act, which is here preserved, in order to shew the difference of the doctrine. which has been introduced in consequence of the statute. This was upon an ejectment brought in the court of Common Pleas, upon a question arising out of the will, dated in 1699, of Nathaniel Hudson, who devised real estates to his sister, and the heirs of her body; and for Scrape v. want of such issue, to his nephew in fee: and his moiety C. B. 9 Geo. 2. of other estates to his sister and her heirs; and in case Comyns, 542. his sister and nephew should both die, having no issue of their, or either of their bodies, he gave several lega cies to charitable uses, payable as annuities for ever—. · remainder to such uses as his sister should appoint: which payments to charitable uses he directed should be paid after such decease of his sister and nephew, without issue, by such persons as should enjoy the said estates and moities; and gave the other moiety to his nephew in fee*: In Rhodes. Easter T. 1736. * A devise of an annuity and a sum of money to a person, and if he Devise over of die without heirs, then to a charity :-as this would be void, if so L given money is void. to 2 P. Wms. 369. Atty. v. Gill, 1726. In 1705 the sister conveyed the premises devised to her, to the use of herself for life; with remainders as to one moiety to Sarah for life-to trustees, &c.-to sons in tail—and then to her daughters, &c.—and as to the other moiety, to the nephew of Hudson in fee. She died without issue: Sarah died, leaving issue two daughters: the nephew had two sons, one of whom died without issue, and the other entered, and made the demise to the plaintiff. It was urged that if she took only an estate tail, this conveyance would be void; for the subsequent words in the will, in case she and the nephew "should both depart this life, leaving no issue of their bodies, or either of their bodies, then such charitable legacies shall be paid for ever," shewed the testator's intent, that she should have the moiety of the houses devised only to her and the heirs of her body. On the other side it was insisted, that there was no devise of the lands over on her dying without issue, but only a devise of three legacies, which were to stand charged on the estate, in case she and the nephew should both die, leaving no issue; a contingency which had not then happened. The court gave judgment for the defendant; that the lands themselves were not devised, but only yearly sums to be paid out of the lands. The intention therefore seemed to be, as far as could be collected from such obscure words, that she should have the estate in fee; but if she left no issue, and if the nephew left no issue, (who was heir-at-law to her if she left no issue) then the estate to a common person, so shall it be also void, when given to a charity: the word heirs shall not be construed to signify heirs of the body, where the devisee over is not inheritable. Here the devisee died in the life-time of the testator, and this determination was made on a demurrer to an information against the executors to establish the charity estate should stand charged with those annuities, in the hands of any collateral heir. Soon after passing the last statute of mortmain, we find the following determination on this subject: A devise of land was charged with an annuity to a 2 Vezey, 275. minister of a Baptist meeting-house. (Testatrix died Atty. v. Cock. before the last act.) The question was, whether this was a charity of such a natnre as is proper for the court to countenance or establish? In aid of the arguments for the question, these cases were cited: Da Costa v. D'Pays, in 1743, where Elias D'Pays, a Jew, appropriated a sum of money for the establishment of an assembly for reading their holy and divine law for ever. It was held illegal, as against the propagation of the ́Christian establishment. Atty.-Gen. v. Andrews, in 1748, copyhold lands devised for benefit of Quakers, and established as a good charity. Sir J. Strange (for Lord Chancellor) said, these cases seem strong in support of this. The Baptists are persons the legislature have thought proper so far to countenance, as a denomination of Christians, as to extend the toleration to them, standing on the same foot as Quakers, another species of dissenters if therefore the court has established it in case of a provision for Quakers, there is no reason why a difficulty should be made to give this kind of dissenters the benefit of that provision. In the Quakers' case, the court went a great way, not only countenancing it as a good charitable use, but supplying the want of a surrender to the use of the will. It is somewhat material that the mortmain act has made no distinction between one set of people and another. The minister was decreed to have the arrears, and the charity established for payment for the time to come, and his costs. A considerable time after this decision, an argument was raised upon a devise of annuities to church-wardens |