2 Vern. 681. Swinb. 452. 3 Will. 386.

Ca. Talbot, 226.

Atty. v. Pye, 1738.

1 Atk 435. Lawson v. Stitch, 1738.

by him was in danger, and therefore to have been done in favour of the legatee, and what was done out of kindness to him ought not to be interpreted to his prejudice.

A debt of 10001. bequeathed to the Coopers' Company to build alins-houses, proved to be only 3651. was maintained. But if the testator recovers the debt at law, the legacy is adeemed. Ademptions are confined to cases Roome, 1744. where the testator applies the money to the same purposes as those for which he had bequeathed the debt.

1 Atk. 507.

Roome v.

3 Atk. 381.

10 Co. Rep. Trin. 10 Ja. 1.

SECTION VII.

Devises or Bequests for intended Uses.

THE court has favoured devises for intended charities, although they were not in esse at the time of the charter, or of the will of the founder; and it has been fully established, that devises for a foundation subsequent to, and consequent upon a charter of incorporation, are valid as operative acts upon that previous license.

The case of Sutton's Hospital, and the decision upon it, set this question at rest, and confirmed the right of the patentee to found his charity after he had received his license to purchase and erect the foundation.

Baxter, the nephew and heir-at-law of Thomas Sutton, within a year after the decease of his uncle, brought trespass against the executors of his will, and a special case was reserved on all the points urged at the trial; all of which were reducible to one, that the act of incorporation was previous to the foundation; against which objection it was maintained for the establishment, that the crown has the power to give the means, by creation of a capable body politic, by way of incorporation, to have a perpetual succession to perfect and perpetuate the charitable work intended; that the incorporation being

present,

present, and the execution of the license future, the incorporation ought of necessity to precede the license; that the true meaning of the words "to found, erect, and establish," is to lay the foundation of a building whereon to erect the house, and there to establish and make the society to have continuance; that it is impossible to take in succession for ever without a capacity, and this cannot be without previous incorporation; and it is not until after the act of incorporation that any town or society can have this capacity: hence it must precede the donation of land; that the other part of the license to a new incorporation is to take in mortmain. This is not of necessity, either of the essence of the incorporation or of its continuance, for the corporation is perfect without it; but yet it is requisite for the establishment and maintenance of its end, viz. to have the poor sustained, the scholars instructed, &c. for they cannot be maintained without a revenue, and they cannot take and retain a revenue without a license in mortmain, and therefore the incorporation and license ought to precede the donation: that the words, to found, erect, and establish, cannot be extended to the incorporation, for that belongs to the crown, nor to any donation of land, for as yet there is not any capacity; therefore they extend only to the completing the building: that the founder may do these acts without license, but his application to the crown is to give succession and perpetuity to his foundation, which cannot be without it: that the founder, by his application for the charter, signs his consent, and thereby waves any right of objection, that the crown could not give a name and perpetuity of inheritance to the lands, and inheritance of any one; the crown names the incorporation, and gives the capacity, and leaves it to the founder to perfect all the mechanical part of the establishment; that the law has not restrained incorpo

1 Roll. 513. 10 Rep. 30.

Plow. Com.

592. b. 2 And 208. Moor, 233 1 Leon, 159.

ration to any prescribed and incompatible words; and when the corporation is duly created, all other incidents are tacitly annexed and amongst others the license to purchase in mortmain.

That although the officers and members are not chosen till after the date of the charter, yet they are chosen under its authority, and are immediately incorporated thereby it is immediately, by the letters-patent, a corporation in abstracto, but not in concreto till the naming of the master. That a void space, on which a house is intended to be built, may, by the king's charter, be named a house, and this is sufficient to support the name of the incorporation; as the hospital of St. John of Je rusalem and of the Knights Templars was incorporated in 14 H. I. but neither the fabric of the temple, nor the house of the hospital, were built till the reign of H. II. Mat. Paris, 64. the one by Jordan Bissett, and the other by Heraclius, patriarch of Jerusalem; so the Savoy was founded by H. VIII. upon a charter of H. VII. There is great reason that an hospital, &c. in expectancy, or intendment or nomination, should be sufficient to support the name of an incorporation, when the corporation itself is only in abstracto, and rests only in intendment and consideration of law; a thing which is not in esse, but in apparent expectancy, is regarded in law-as a bishop who is elect before he is consecrated. So for a corporation it is suf ficient to name a place, &c. for that imports truth and certainty.

That in law there are two manners of foundation, one fundatio incipiens, and the other fundatio perficiens; and therefore quatenus ad capacitatem & babilitatem, the incorporation is metaphorically called the foundation, for that is the beginning, as a foundation, quasi fundamentum capacitatis, preceding the whole; but quatenus ad dotationem, the first gift of the revenues is called the foundation,

C. 41.

38 Ass. p. 22.

512.

foundation, and he who gives it is the founder in law; and that is proved by the statute of Westminster, where Westmin. 2. the collation or gift of the tenements is called the founda- 2 Inst. 457.8. tion. Si autem domus, &c. He who gives the first land is F.N.B. 211. the founder. That if the king incorporate the poor of 1 Roll. 514. the hospital, the founder need not make any instrument comprehending any foundation, erection, &c. but his gift of the land being the first gift, makes him the founder, and the first donation is all the foundation which is requisite in law; and to the erection of an hospital, &c. there is not in law any thing requisite but incorporation and donation. The first dotation is the foundation, which is to be understood with this distinction, that where the crown expresses the words, designs the place, appoints the number, and gives them a name by charter, 1 Roll. 133. so that it is a complete corporation; there the founder 1 Anders. 210. hath nothing to do but to make the dotation without Br.Prescript.12. 10 Rep. 33. 6. any instrument, comprehending the words found, erect, establish, &c. for the common person, who is the founder in such case, has nothing to do in the work of incorporation; but when the crown by charter reserves as well the nomination of the persons as the name of the incorporation, to a common person who shall be the founder, there he ought to name the parties, and declare by what name they shall be incorporated, and when he hath done this by writing then they are incorporated by the king's letters-patent, and not by the common person; for he is but an instrument, and the king makes the corporation in such case in the same manner as if all had been comprehended in the letters-patent themselves; for none but the king alone [or the parliament] can make a corporation. A subsequent bargain and sale, conveying the lands by purchase for a valuable consideration to the governors so incorporated is valid, although the babendum declare the trust; and their pleading may be, that they

are

Westm. 2. ult. сар.

are seized in their demesne as of fee in right of their incorporation, &c.

These points were settled with the assent of all the judges, and of Lord Ellesmere, chancellor, against Sutton's heir-at-law, who afterwards signified some contrition at having instituted the suit

Summa Caritas est facere Justitiam omnibus personis omni tempore quando necesse fuerit.

Much of this doctrine will be found to have directed the late case of Downing College.

Sir George Downing, of Gamlingay Park, in Cambridgeshire, by his will, dated 20th Dec. 1717, devised to trustees divers lands, freehold, copyhold, and leasehold, for several life-estates, with remainder finally in default of certain issue to the same trustees and their heirs, in trust out of the rents of said lands to purchase the inheritance in fee simple of some piece of ground in Cambridge, proper for erecting a college within that university, to be called Downing College; and that a charter should be applied for to incorporate the same, and when founded, that the trustees should stand seized of the lands to be so purchased, for the use of the collegiate body and their successors for ever.

Testator died in June, 1749, without revoking or altering his will, but by a codicil charged his estates with two annuities all the devisees for life dying without issue, the estates devised became applicable to the purchase of land to found the college. The trustees all died in the testator's life-time. The testator's cousin, Sir Jacob Garrard Downing, was his heir-at-law and executor, dying and leaving Margaret his widow and executrix, she claimed the leasehold estates, and the freehold and copyhold were claimed by the surviving heirs-at-law of Sir George Downing. The copyhold lands had never been surrendered to the use of the testator's will.

On