This rule is well established, although it has sometimes been followed with reluctance. Exeter. In Att.-Gen. v. Corporation of Exeter (q), Lord Eldon, without Att.-Gen. v. finally pronouncing judgment, threw some doubt upon it. But the Corporation of case was afterwards heard by Lord Lyndhurst (), and it was held that it was improper to apply the rent of land given to a municipal corporation for the aid of the poor citizens in paying fee farm rents due from the city, in repairing the gaol, maintaining the prisoners, and for other public purposes. The reasons for the rule are stated in Att.-Gen. v. Wilkinson (s), Reasons for where Lord Langdale, alluding to gifts for the benefit of the rule. poor, said: “In such cases it was never intended that the charity should directly benefit the rich, although it is true, that you can in no way benefit the poor without at the same time, to a certain extent, relieving the rich, either as to their legal duty or their moral obligations. In some of the cases, the charity funds had been applied in aid of the poor rates, and, by this mode, in relief of those who were bound by law to pay them, and the Court thought it necessary to prevent such an abuse. If an additional gift were made to poor persons who received relief from the parish, there might be no objection to such additional gift; but in some cases which have come before the Court, charitable funds of this description have been so applied, that the poor have received merely parish relief, and no additional assistance has been afforded them: it was to prevent this abuse that the Court thought right to give the charity funds to persons who, but for such gift, would have received no charitable assistance." In Att.-Gen. v. Bovill (t), Lord Cottenham said, that if he had Att.-Gen. v. not the decisions to contend with, it appeared to him, with respect Bovill. to that particular case, that the course would be to select proper objects of the charity, without regard to whether it would operate to the relief of the poor rates or not; for, either directly or indirectly, it must so operate in whatever manner the funds might be applied (u). He nevertheless considered himself bound by the rule. In Att.-Gen. v. Leage (x), Kay, J., said: "Such a trust (i.e., for the poor), it is well settled, is for such of the poor only as do not (2) 2 Russ. at pp. 53, 54. (r) 3 Russ. 395. (s) 1 Beav. at p. 373. See also Att.Gen. v. Clarke, Amb. 422. (t) 1 Ph. at p. 768. (u) Cf. the observations of Lord Denman in Churchwardens, &c. of St. Nicholas, Deptford v. Sketchley, 8 Q. B. at p. 405. (x) App. III. to this Book, post. A recent unreported dictum may be added to the above list of authorities. In Re Shaftoe's Scheme refused, as tending to relief of rates. Gift in aid of rates. Charity for maintaining poor boys not confined to those requir ing parish relief. Ambiguity in institution. receive parish help, that is, for those who take no part of the poor's rate." Upon a similar principle, a proposed scheme was refused on the ground (inter alia) that it contemplated objects which were already better provided for by the Industrial Schools Act (y), and that the charity ought not to be applied for the relief of rates and taxes (~). This rule does not apply where the intention is that the gift shall be applied in aid of the rates, and such a gift is, as we have seen, charitable («). In such a case the income is properly applied in aid of the poor rates (b). Where an Act of Parliament directed that the funds of a charity should be applied in maintaining and lodging sixteen poor boys in a charity school, it was held that the trustees were not bound, in electing the poor boys, to confine themselves to those requiring parish relief (c). Misdescription. We have seen (d) that where a general charitable intention is description of shown a legacy to a charitable institution inaccurately described does not fail. The Court endeavours, in the first place, to ascertain which was the institution intended (e). Parol evidence. Inquiry. In a case of this kind, there being a latent ambiguity, extrinsic evidence is admissible; the Court places itself as nearly as possible in the position occupied by the testator, so as to endeavour to ascertain what his intentions were. It accordingly receives evidence as to the testator's connection with, or knowledge of, the rival institutions, as, for instance, that he was interested in and subscribed to one of them (f), or that one had not been founded at the time he lived in the neighbourhood (g). And an inquiry may be directed to ascertain which society was intended (). (y) Industrial Schools Act, 1866 (29 & 30 Vict. c. 118); Habitual Criminals Act, 1869 (32 & 33 Vict. c. 99), repealed by the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112). (z) Re Prison Charities, L. R. 16 Eq. 129; and see Att.-Gen. v. Duke of Northumberland, 5 Times L. R. 237. (a) Att.-Gen. v. Blizard, 21 Beav. (b) Att.-Gen. v. Blizard, supra; Att.- 142. (c) Guardians of Canterbury v. Mayor, &c. of Canterbury, 31 L. J. Ch. 810. (d) Ante, p. 34. (e) Middleton v. Clitherow, 3 Ves. Jun. 734. (f) Att.-Gen. v. Hudson, 1 P. Wms. 674; Re Kilvert's Trusts, L. R. 7 Ch. 170; Re Briscoe's Trusts, 20 W. R. 355; Re Fearn's Will, 27 W. R. 392; Buxton v. Blakiston, 2 Times L. R. 293; Re Bradley, Oldershaw v. Governesses Benevolent Institution, 3 Times L. R. 668; Makeown v. Ardagh, Ir. R. 10 Eq. 445. See Bunting v. Marriott, 19 Beav. 163. (g) King's College Hospital v. Wheildon, 18 Beav. 30. (h) Middleton v. Clitherow, 3 Vcs. Jun. 734. But where a legacy was given to a society, stated to be in London, Not to which did not exist, evidence was not admitted to show that a society not in London was intended (i). contradict express statement of testator. Where not doubt to These cases must be distinguished from those in which there is a gift to a particular society, with some inaccuracy of description; sufficient but the ambiguity is not sufficient to let in evidence of intention (). admit Thus, where the gift was to the London Orphan Society in the evidence. City Road, it was held that the Orphan Working School in the City Road was intended (1). In Smith v. Ruger (m) there was a legacy to the German Hos- Smith v. pital at Dalston, with a direction that it should be laid out in Ruger. completing the almshouses then erecting in connection with the hospital, but that it might, nevertheless, be lawfully applied to the general purposes of the charity. The German Hospital had no almshouses. There was another charity for foreigners in distress which was building almshouses, but it was not at Dalston. It was held that the German Hospital at Dalston was entitled. In one case there was a bequest to the Benevolent Institution for delivering poor married women at their own homes. The testatrix had been a member of a society of that name, but it had come to an end before the date of her will. It was held that the legacy was intended for the Royal Maternity Society which had the same objects (n). rector. Where the gift was to the rector of the parish of New Windsor, Vicar and corporation of the borough of New Windsor, and it appeared described as that there was no rector of New Windsor, but only a vicar, the bequest was given to the vicar and corporation (0). A legacy to "all and every the hospitals," was held to mean "All the hospitals in the town in which the testatrix resided; and one stand- hospitals." ing a mile outside was excluded (p). London." Where the gift is "to the hospitals of London," London must "Hospitals of be construed in a popular sense, and not confined to the City of London. Consequently, no definite boundaries can be laid down; but it must be considered, as regards each institution suggested, whether it is within what the testator would have considered to be London (q). (i) Re Clergy Society, 2 K. & J. 615. (k) Re Kilvert's Trusts, L. R. 7 Ch. 170. (1) Wilson v. Squire, 1 Y. & C. C. C. 654. (m) 5 Jur. N. S. 905. See, also, as to what is a sufficient description, Wallace v. Att.-Gen., 33 Beav. 384; Re Adams, Harle v. Adams, 4 Times L. R. 757, where the question was who was entitled to a legacy to a particular Presbyterian (n) Coldwell v. Holme, 2 Sm. & G. 31. 242. Presumption in favour of general hospital. Pauper lunatic asylum. Patent ambiguity. Society incorporated with another society. Condition of forfeiture. Gift over. In the case of a legacy to a hospital, with an erroneous description, there is a presumption of intention on the part of the testator to benefit a general rather than a special hospital. Thus, where the gift was to the "Westminster Hospital, Charing Cross," the Royal Westminster Ophthalmic Hospital was excluded (»); and where the gift was to the "Kent County Hospital," which did not exist, the Kent County Ophthalmic Hospital was excluded (s). A pauper lunatic asylum was held not entitled to a legacy to the treasurer of an asylum thereafter to be instituted "for the humane and charitable purposes of that institution " (†). Parol evidence is inadmissible in the case of a patent ambiguity, as where there is a blank left in the will (u). Where the society intended to be benefited made over its rights and liabilities to another society, the legacy was paid to the latter (v). And where bequests were given to two societies which, before the death of the testatrix, had become united, both were paid to the consolidated society (w). Conditions of Forfeiture. Where the person benefited by a charitable gift has done all in his power to fulfil the conditions imposed upon him, although they may not have been literally performed, the Court does not readily construe the gift in such a way as to produce a forfeiture (x). But where there is a gift over on non-observance of certain conditions, effect must be given to it (y). In a recent case (≈), a testator directed that the rents of certain land should be paid to some person to celebrate divine service in the parish church every day in the week for ever; and in case of failure to perform service for more than three days together, the rents were directed to be paid to a hospital. Service not having been performed as required, the gift over was held to have taken effect. Jessel, M. R., said, "It is no answer to say that there was no congregation. A congregation sufficient for saying the prayers is not limited by law to any (r) Bradshaw v. Thompson, 2 Y. & C. C. C. 295. (8) Re Alchin's Trusts, L. R. 14 Eq. 230. (1) Lechmere v. Curtler, 24 L. J. Ch. (u) Baylis v. Att.-Gen., 2 Atk. 239. (x) Re Conington's Will, 8 W. R. 444, number of persons. The minister and his clerk, and the sextoness, would have done very well, or the minister and his clerk would have done very well. There was no occasion to have any one else there. But what the testator required was, that the service should be performed and anybody might have come and attended the church." condition of An alteration of the trusts effected by a scheme established by Effect of competent authority could never cause a forfeiture. The effect of scheme on the scheme is to substitute a new set of trusts for those in respect forfeiture. of which the condition of forfeiture was imposed; and the condition of forfeiture must be transferred accordingly, even though it may be inapplicable to the new trusts, and, consequently, cease to be operative (a). Where a charitable legacy is bequeathed to trustees, with a gift Trustees over in case they should decline to execute the trusts, they are, entitled where absolutely if they accept the trusts, entitled to an absolute transfer of the condition fund (b). Continuance of Trust. satisfied. Property once impressed with a perpetual charitable trust can Charitable never revert, nor can the trust cease (c). trust once created Where land belonging to the corporation of Liverpool was set continues. apart under a statute for a burial ground, and by the sentence of consecration the corporation renounced all right to the land, and the burial ground was afterwards closed by Order in Council, it was held that there had been no reverter to the corporation, and that, if necessary, a conveyance by them of the fee simple would be presumed (d). veyance for A question was raised in Corporation of Newcastle v. Att.-Gen. (e) Whether conwhether a person who has voluntarily founded and endowed a charity can afterwards avoid his own act under 27 Eliz. c. 4, by sale to a purchaser for valuable consideration. charity can a be avoided by subsequent conveyance for value. It was held in that case that where a corporation had voluntarily founded a hospital under 39 Eliz. c. 5, and purchased real estate, and caused it to be conveyed direct to the hospital, it could not (a) Re Bacon's Trusts, Jessel, M. R., 7th Dec. 1878. See also Christ's Hospital v. Grainger, 1 Mac. & G. at pp. 464, 465; Re Parish of Upton Warren, 1 My. & K. 410, where the first gift was applied cy-près, notwithstanding a limitation over; Re Trustees of Orchard St. Schools, W. N. 1878, 211. (b) Re Richardson's Will, 58 L. T N. S. 45. (e) See Att.-Gen. v. West, 27 L. J. Ch. 789; Incorporated Society v. Price, 1 J. & Lat. 498; Aylet v. Dodd, 2 Atk. 238; (d) Campbell v. Corporation of Liverpool, (e) 12 Cl. & F. at p. 415; see also S. C. nom. Att.-Gen. v. Corporation of Newcastle, 5 Beav. at p. 312. |