his life, and after his death by the trustees. Upon an information in 1853, it was held that parol evidence was inadmissible to prove that the provision in the deed giving the appointment of the preachers to the trustees was inconsistent with the paramount objects of its founders, and would, after the death of John Wesley, clash with the general system of Methodism (y).

And however long continued has been the usage to the contrary, Usage cannot it cannot prevail to contravene the clearly expressed intention of prevail where the founder ().

contrary origin shown.

time will

"If the Court finds a clear trust expressed on a will, no length No length of of time during which there has been a deviation from it can warrant warrant this Court, as I apprehend, in making a decree in contra- deviation diction to such a trust" (a).

from clear trust.

General rule

as to effect of usage on

construction

of ancient

With regard to the effect of long-continued usage on the construction of ancient instruments, Lord Eldon said (b):"Length of time. . . is a very material consideration when the question is, what is the effect and true construction of the instruments. instrument. Is it according to the practice and enjoyment which has obtained for more than two centuries, or has that practice and enjoyment been a breach of trust? If it has, we must not scruple to disturb it; but still regard must be had to that circumstance."

And in Att.-Gen. v. Smythies (c), Lord Brougham said: "It is impossible, in cases of this description, to lay out of view the length of time during which a certain arrangement has subsisted, and a certain meaning has been given in practice to the instrument of foundation. If, indeed, the practice, though of centuries, has been a breach of trust, doubtless the lapse of time should be no bar. But long adverse enjoyment is not to be thrown out of view in seeking for the true construction of the provisions under which both conflicting parties claim; and a principle of distribution under a known instrument of foundation, if long acquiesced in by all the objects of the bounty from whence the funds proceed, and to effectuate the purposes of which the instrument is framed, ought not, without manifest reason, to be disturbed. The rule of inter

(y) Att.-Gen. v. Clapham, 4 De G. M. & G. 591.

(=) Att.-Gen. v. St. Cross Hospital, 17 Beav. 435; Att.-Gen. v. Clapham, 4 De G. M. & G. 591; Att.-Gen. v. West, 27 L. J. Ch. 789; Att.-Gen. v. Ewelme Hospital, 17 Beav. 366; Att.-Gen. v. Gould, 28 Beav. 485; and see Shore v. Wilson, 9 Cl. & F. at pp. 499-578; Att.. Gen. v. Corporation of Beverley, 6 De G. M. & G. 256.

(a) Att.-Gen. v. Corporation of Rochester, 5 De G. M. & G. at p. 822; Att.-Gen. v. St. John's Hospital, Bedford, 2 De G. J. & S. 621; and see Att.-Gen. v. Corporation of Beverley, 6 De G. M. & G. at p. 268.

(b) Att.-Gen. v. Mayor of Bristol, 2 J. & W. at p. 321. See also Att.-Gen. v. Corporation of Boston, 1 De G. & Sm. 519; Att.-Gen. v. St. Cross Hospital, 17 Beav. 435.

(e) 2 R. & M. at pp. 749, 750.

Founder may

impose religious restrictions.

Presumption against such restriction.

Stronger in case of

pretation from contemporaneous usage and long acquiescence extends over every branch of the law, independently of its connection with matter of limitation and bar. I speak not now of a course of dealing with charitable funds in the absence of evidence respecting the original endowment, or in plain opposition to its provisions. But, where the endowment is forthcoming, its construction may be aided by adverting to the long and uninterrupted acting under it, and acquiescence in that acting."

Religious Restrictions in Non-Religious Charities.

Charities, although not primarily established for a religious purpose, as, for example, educational and eleemosynary charities, may be confined to persons holding a particular form of religious belief; and where it was the intention of the founder that they should be so confined, that intention must, unless varied by competent authority, be carried out (d).

There is, however, a presumption against such an intention, if anything, stronger in the case of an eleemosynary than in the case of an educational charity.

The Court accordingly assumes, in the absence of expressed intention to the contrary, that the founder did not intend, in the one case, that any particular religious doctrine should be combined with the secular education, and in the other, that the benefit of the charity should be confined to persons professing one particular form of religious belief (e).

In the case of an eleemosynary charity, the presumption against eleemosynary confining it to members of a particular church or sect is so strong charity. that nothing short of an expression of unequivocal import will exclude any class of Dissenters from its benefits, and all evidence as to the peculiar tenets and opinions of the founder is inadmissible as evidence of his intention (ƒ).

(d) Att.-Gen. v. Calvert, 23 Beav. at pp. 251, 255; Shore v. Wilson, 9 Cl. & F. at p. 383; Craigdallie v. Aikman, 1 Dow, at p. 16; Broom v. Summers, 11 Sim. 353; Att.-Gen. v. Welsh, 4 Hare, 572; Att.-Gen. v. Munro, 2 De G. & Sm. Att.-Gen. v. Murdoch, 7 Hare, 445; Att.-Gen. v. Clapham, 4 De G. M. & G. 591. For a case where it was held upon the construction of a charter that the charity was for religious purposes, education, and relief of the poor

122;

exclusively, see Att.-Gen. v. Corporation of Boston, 1 De G. & Sm. 519.

(e) Att.-Gen. v. Calvert, 23 Beav. at pp. 256-258; Att.-Gen. v. Clifton, 32 Beav. 596. See Re St. Leonard, Shoreditch, Parochial Schools, 10 App. Cas. 304.

(f) Att.-Gen. v. Calvert, supra. See also Att.-Gen. v. St. John's Hospital, Bath, 2 Ch. D. 554. For an instance of an eleemosynary charity for the benefit of Dissenters, see Shore v. Wilson, 9 Cl. & F. 355, stated infra.

Religious Charities.

In many cases a charity is established for purposes purely Charities for religious. Dissenting chapels furnish a common instance of this (g). religious objects. Where this is the case two presumptions arise. The first is that Presumptions the institution was intended for the inculcation or observance of in favour of religious some particular form of doctrine or worship. The second is restrictions. that the form intended was that professed by the founder or

founders (h).

"worship of God."

A charity for the "worship of God" is primâ facie a charity for Charity for the benefit of the established religion (i). Where the trust is expressed to be for the benefit of Protestant For ProDissenters generally, Dissenters of all denominations are primâ testant facie included (k).

Dissenters generally.

construed as

Where the will establishing the charity was made before the Will before Reformation, it must be construed as though it had been made after Reformation that date, and provisions as to the rites or doctrines of what was though made then the established religion must be read as referring to the Church of England as established after the Reformation (1).

after.

What the intention of the founder or founders was is a question Intention of

of fact (m).

founders a question of

If the intention is expressed in the instrument of foundation, fact. whether a will or deed of trust, no difficulty arises.

Intention expressed.

Extrinsic

When, however, it is not so expressed, or is expressed in Not expressed ambiguous terms, recourse must be had to extrinsic circumstances, or ambiguous. such as the known opinions of the founder, the existing state of the law, contemporaneous usage, or the like, for determining who admitted. are the objects of the charity, and in what manner the trusts are to be performed.

Wilson.

In Shore v. Wilson (n), Lady Hewley, by deeds executed in Shore v. 1704, conveyed estates to trustees upon trust to apply the rents for poor and godly preachers for the time being of Christ's Holy Gospel, and their widows, and for promoting the preaching of and educating young men for the ministry of Christ's Holy Gospel, and for the relief of such godly persons in distress. By deeds executed in 1707, she conveyed other estates to the same trustees,

(g) As to the right of Dissenters and others to have the trusts of their places of worship executed, see ante, p. 21.

(h) Per Romilly, M. R., in Att.-Gen. v. Calvert, 23 Beav. at pp. 255, 256; Att.-Gen. v. Pearson, 3 Mer. at p. 410; Craigdallie v. Aikman, 1 Dow, 1; and see Dill v. Watson, 2 Jones' Ex. R. 48. (i) Att.-Gen. v. Pearson, 3 Mer. at p. 409.

(k) Att.-Gen. v. Murdoch, 7 Hare, 445. (1) Att.-Gen. v. Calvert, 23 Beav. at p. 260. Cf. Glasgow Coll. v. Att.-Gen., 1 H. L. C. 800.

(m) Per Lord Lyndhurst in Shore v. Wilson, 9 Cl. & F. at p. 390.

(n) 9 Cl. & F. 355. See also Drummond v. Att.-Gen., 2 H. L. C. 837; and, with regard to Presbyterian trusts, Westwood V. McKie, 21 L. T. N. S. 165,

Trusts of Dissenting chapels.

Contemporaneous declara

partly for the support of old people in an almshouse, and as to the residue upon trusts similar to those contained in the deeds of 1704. She left rules with regard to the persons to be admitted into the almshouse, under which none were to be admitted except such as were poor and pious, and of the Protestant religion. Lady Hewley and all the original trustees were Dissenters, but believers in the doctrines of the Trinity and original sin. In course of time the estates became vested in trustees, of whom the majority were Unitarians, and the rents were applied for the benefit of Unitarians. It was proved that the Unitarians believed in neither of the above-mentioned doctrines.

It was held that for the purpose of determining the objects of the charity under the terms, "godly preachers of Christ's Holy Gospel," "godly persons," and other expressions used in the trust deeds, extrinsic evidence was admissible to show the existence of a sect by which that phraseology was used, and that the testatrix herself belonged to it. And it was also held upon the evidence that neither Unitarians nor members of the Church of England, but Protestant Dissenters only, were entitled to have the benefit of the charity; and that as all the trustees had concurred in the misapplication of the charity funds they must all be removed.

Where a testatrix directed the income of a fund to be paid to a certain minister and his successors, so long as he and they should teach the Gospel of Christ under the name of orthodoxy, and it appeared that the minister named preached during the life of the testatrix to a congregation of Calvinists, or orthodox Independents, it was held that the minister for the time being of that congregation was entitled (o).

With regard to Dissenting chapels, Lord Eldon said (p):— "Where a body of Protestant Dissenters have established a trust without any precise definition of the object or mode of worship, I know no means the Court has of ascertaining it, except by looking to what has passed, and thereby collecting what may, by fair inference, be presumed to have been the intention of the founders."

And where the trust is expressed to be for an existing congregation of Protestant Dissenters, the terms of the trust themselves open an inquiry into the character of the congregation (1).

When the contributors are so numerous as to preclude the tion of trust. possibility of their all concurring in any instrument declaring the

(0) Att.-Gen. v. Molland, You. 562.
(p) Att.-Gen. v. Pearson, 3 Mer. at
p. 410. See Drummond v. Att.-Gen., 2

H. L. C. 837.

(a) Att.-Gen. v. Murdoch, 7 Hare, 445. Cf. Dill v. Watson, 2 Jones' Ex. R. 48.

trust, a declaration of trust made by the persons in whom the property is vested, at or about the time when the sums were raised, may reasonably be taken as being primâ facie a true exposition of the intention of the contributors (»).

So also contemporaneous deeds relating to the same chapel may Contemporabe properly referred to (s).

neous deeds.

If the Court can find no other means of ascertaining what form Usage. of religious worship was intended, it must investigate the usage of the congregation in respect to it, and if the usage turns out to be such as can be supported, it is the duty of the Court to administer the trust in such a manner as best to establish the usage, considering it as a matter of implied contract between the members of the congregation (†).

An inquiry may be directed for the purpose of ascertaining the Inquiry. objects for which the trusts were created and the usage of the congregation (u).

contradict

In this case, as in all, extrinsic evidence is only important where Evidence not the trusts have not been declared (), or where the language of the admissible to instrument of foundation is ambiguous (y). It is not admissible written to contradict the express provisions of an instrument (≈), or to sanction a breach of trust (a).

instrument.

In consequence of the difficulties, which constantly arose, in Twenty-five determining which of several dissenting sects was intended to years' usage. have the benefit of a charity, and whether, in the execution of the trusts, the principles of the founders had been departed from, the Dissenters' Chapels Act (b) was passed, by which, in the case of a place of worship, where there was no express statement in the deed of foundation as to the particular doctrines for which it was to be employed, twenty-five years' usage was made conclusive.

By sect. 2 of that Act it is enacted, "that so far as no particular 7 & 8 Vict. religious doctrines or opinions, or mode of regulating worship, shall, c. 45, s. 2. on the face of the will, deed, or other instrument declaring the trusts of any meeting-house for the worship of God by persons dissenting as aforesaid (i. e., from the United Churches of England and Ireland), either in express terms, or by reference to some book or other document as containing such doctrines or opinions or

(r) Att.-Gen. v. Clapham, 4 De G. M. & G. 591; and see also ante, p. 114.

(s) Att.-Gen. v. Anderson, 57 L. J. Ch. 543.

(t) Att.-Gen. v. Pearson, 3 Mer. at 400; Drummond v. Att.-Gen., 2 H. L. C. 837.

(u) Att.-Gen. v. Pearson, supra, at p. 420, where the form of order is given. See also post, p. 213.

(x) Att.-Gen. v. Murdoch, 7 Hare, 445; and see ante, p. 115.

(y) Att.-Gen. v. Gould, 28 Beav. 485; Att.-Gen. v. Calvert, 23 Beav. at p. 263. (2) Att.-Gen. v. Clapham, 4 De G. M. & G. 591.

(a) Drummond v. Att.-Gen., 2 H. L. C. 837.

(b) 7 & 8 Vict. c. 45. The Act was passed in consequence of the difficulties which arose in Shore v. Wilson, 9 Cl. & F. 355, supra. See Att.-Gen. v. Bunce, L. R. 6 Eq. at p. 571.