Enumeration. Indefinite gifts. Failure of intended mode of application. Object impossible. Postponed application. of the testator's bounty, are the cases already referred to, in which, a general charitable intention being shown, a gift to charity is supported, where, if it were not charitable, it would fail. It is convenient, however, to enumerate them here. It is by means of the cy-près principle that charitable gifts expressed in general and indefinite terms are applied to particular objects (h). So also, where, although a general charitable intention is shown, the mode by which the objects were intended to be ascertained fails. This case arises where the specific charitable purposes are left to be afterwards named, either by the donor himself (i), or by some other person (k), and they are not named ; or where the gift is to charitable and non-charitable objects, in proportions to be named by other persons, and no apportionment is made (7). The application of the principle is also required where the particular object named cannot be carried out (m), or where the institution to which a bequest is given has ceased to exist (»), or never existed, or cannot be found (o), or where there are several institutions answering the description given by the testator (p), or where the names of the charities to be benefited are left blank (q). Similarly, where there is an immediate charitable gift, but the application is postponed, and the purpose named never arises, or when it does, the fund is larger than is required to satisfy it. 66 'If the fund should, either originally, or in process of time, be or become greater in amount than is necessary for [the purpose named], or if strict compliance with the wishes and directions of the author of the trust should turn out to be impracticable, this Court has power to apply the surplus or the whole (as the case may be) to such other purposes as it may deem proper, upon what is called the cy-près principle" ("). (h) Att.-Gen. v. Clarke, Amb. 422; Att.-Gen. v. Syderfin, 7 Ves. 43, n.; and see ante, pp. 29, 30 seq. (i) Mills v. Farmer, 1 Mer. 55; and cases cited ante, p. 30, n. (ƒ). (4) See cases cited ante, p. 31 notes (j), (7) See cases cited ante, p. 32, n. (7). 129; Biscoe v. Jackson, 35 Ch. D. 460; and see ante, pp. 32 seq. (n) Hayter v. Trego, 5 Russ. 113; Coldwell v. Holme, 2 Sm. & G. 31; Simon v. Barber, 5 Russ. 112; Loscombe v. Wintringham, 13 Beav. 87; Marsh v. Att.-Gen., 2 J. & H. 61. But not where there is merely an intention to benefit a particular institution, see ante, pp. 40, 41. (0) Re Clergy Society, 2 K. & J. 615; Thorley v. Byrne, 3 Hare, 195, n.; Re Maguire, L. R. 9 Eq. 632; Daly v. Att.-Gen., 11 Ir. Ch. R. 41. (p) Bennett v. Hayter, 2 Beav. 81; Simon v. Barber, 5 Russ. 112; Re Alchin's Trusts, L. R. 14 Eq. 230. (a) Pieschel v. Paris, 2 S. & S. 384. (r) Per Lord Selborne in Chamberlayne v. Brockett, L. R. 8 Ch. at p. 211. gift. There can be no cy-près application where the gift to charity is Conditional conditional, and the condition is not satisfied; for unless the condition is fulfilled, the gift cannot take effect (s). income. The principle is similarly employed where there is a general Surplus charitable intention, and the fund is larger than is required for the objects named, or the whole income is not disposed of (t). Under the same head fall also cases where application cy-près is Trustees rendered necessary by reason of the trustees named declining to disclaiming. accept the trusts, as where property is given to a college of a university for purposes connected with the college, and the college refuses to accept it (u). So, also, where the testator appointed as trustee the holder of an office which was abolished before his death (r). In Att.-Gen. v. Mayor of London (y), a new application of the Country in which charity charity was rendered necessary, by reason of the country in which administered the charity had previously been administered having become an becoming independent state. Where the legacy is for a charitable object in a foreign country, which fails, it does not appear that it will be applied cy-près in this country (). A charitable bequest which is void, because contrary to the law, will in many cases be applied cy-près (a). This was formerly the case with a gift for superstitious uses (6). Another instance is where accumulation is directed beyond the period allowed by law (c). So, also, where there was a bequest to supply the inmates of a workhouse with porter (d). independent. Foreign charity not applied cyprès in England. Illegal gift. In the case of Roman Catholic charities, provision is, by the Roman (8) Ibid.; and cf. New v. Bonaker, L. R. 4 Eq. 655; and see ante, p. 54. (t) Anon., cited 2 J. & W. at p. 320; and see Thetford School Case, 8 Co. 130; Att.-Gen. v. Minshull, 4 Ves. 11; Att.Gen v. Wansay, 15 Ves. 231; Att.-Gen. v. Earl of Winchelsea, 3 Bro. C. C. 374; Att.-Gen. v. Holland, 2 Y. & C. Ex. 683; Att.-Gen. v. Bovill, 1 Ph. at p. 768; Re Ashton's Charity, 27 Beav. 115. (u) Att.-Gen. v. Andrew, 3 Ves. Jun. 633; Reeve v. Att.-Gen., 3 Hare, 191; Denyer v. Druce, Taml. 32. Where the objects named are still capable of being carried out, although the trusts are disclaimed, the execution by the Court does not, of course, involve an application of the cy-près principle. (x) Att.-Gen. v. Stephens, 3 My. & K. 347. (y) 3 Bro. C. C. 170. (3) New v. Bonaker, L. R. 4 Eq. 655. (a) Moggridge v. Thackwell, 7 Ves. at (b) Da Costa v. De Pas, Amb. 228; (c) Martin v. Margham, 14 Sim. 230. Catholic Gift contrary to express enactment. Cy-près doctrine Roman Catholic Charities Act, 1860 (e), expressly made for the application cy-près, under certain circumstances, of gifts to superstitious uses. But a gift which is rendered void by the Mortmain and Charitable Uses Act, 1888 (ƒ), cannot be applied cy-près (g). The doctrine of cy-près is required to be applied in the case of applied in an existing charity, where the objects for which the charity was re-modelling established have ceased to exist, or have become impossible to be existing charity. carried out (); or where lapse of time and change of circumstances have rendered a strict adherence to the original objects undesirable, or where the revenues of the charity have increased beyond their requirements (i). Increased revenue. Original objects impracticable or satisfied. Discretion as to division. Although, as we have seen (k), increased income is primâ facie divided among the original objects of the charity, yet that is not necessarily so. Nor, similarly, is there any absolute rule that one or more of a number of specified objects may not receive an increased benefit to the exclusion of the others or other of them (/). If the increased revenue of the charity cannot, or cannot advantageously, be applied to the original objects, they being already sufficiently provided for, the doctrine of cy-près is let in. The rule, therefore, that surplus income is divided among the specified charitable objects, is a rule which is subject to the discretion of the Court, to be exercised in certain cases, and within certain limits (m). "It is impossible to specify to what extent or under what circumstances the Court will exercise its discretion of varying the proportions. But suppose, for example, that one of the objects should have so far ceased as that there are few or no objects of that particular kind, and, therefore, should not require any increase: that, I think, would be a case for the exercise of the Court's discretion. So, I apprehend, if it should appear that the directions of the testator with respect to a particular object, if carried out in these days, (e) 23 & 24 Vict. c. 134, s. 1; post, Part III. of this Book. (f) Part II.; formerly 9 Geo. II. c. 36. See post, Part II. of this Book. (g) Sims v. Quinlan, 16 Ir. Ch. R. 191; Jarm. on Wills, 4th ed. p. 250. Distinguish such cases as Biscoe v. Jackson, 35 Ch. D. 460. (h) Att.-Gen. v. Gibson, 2 Beav. 317, n.; Att.-Gen. v. Lawes, 8 Hare, 32; Att.-Gen. v. Ironmongers' Co., Cr. & Ph. 208; Re Bridewell Hospital, 8 W. R. 718; Att.-Gen. v. Daugars, 12 W. R. 363; S. C., 33 Beav. 621; Att.-Gen. v. Kell, 2 Beav. 575; Att.-Gen. v. Bunce, L. R. 6 Eq. 563; Att.-Gen. v. Hankey, L. R. 16 Eq. 140, n.; Re Prison Charities, ibid. 129; Pease v. Pattinson, 32 Ch. D. 154. (i) Att.-Gen. v. Wansay, 15 Ves. 231; Re Ashton's Charity, 27 Beav. 115; Re Latymer's Charity, L. R. 7 Eq. 353; Re Campden Charities, 18 Ch. D. 310; and see post, pp. 154 et seq. (k) Ante, p. 137. (1) Re Ashton's Charity, supra. (m) Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. at p. 452; and see Philpott v. St. George's Hospital, 27 Beav. 107. so far from being beneficial, would be detrimental to the objects. he meant to benefit: in that case a good reason would exist for exercising the discretion" (n). Thus, where rents were directed to be paid, as to 207. to the master of a certain school, as to 207. to Trinity College, Oxford, and as to 57. and 51. for the poor of two parishes, the Court directed an increase to be divided equally between the school and the college (0). income. Where the charity was an endowed school, an inquiry was Inquiry as directed whether an application as to dealing with increased in- to increased come should be made to the Committee of Council on Education, or to the Charity Commissioners or to Parliament (p). The Court will not divide a surplus among the existing objects Not where of the charity where the effect would be to make them cease to be objects of the kind intended to be benefited, as where a division objects of charity cease of the surplus among almswomen would make them cease to be to be so. almswomen (1). division would make in all cases. The doctrine of cy-près, in whatever case applied, is the same, Doctrine of and any variation in the mode and effect of its application must be cy-près same ascribed to the difference in the circumstances under which it is brought into operation. Meaning of Cy-près. The principle of cy-près is simply this, that where the charitable Meaning of intention of the founder or founders cannot be literally carried out, cy-près. it will be carried into effect as nearly as possible. If the mode becomes impossible the general object, if attainable and consistent with the rules of law and not contrary to 9 Geo. II. c. 36 (), shall not be defeated (s); but the law, by the doctrine of cy-près, will substitute some other mode of devoting the property to charitable purposes (t). intention. The principle requires that the objects selected shall be in Regard paid accordance, as nearly as possible, with those marked out by the to founder's founder, or in accordance, as nearly as possible, with the charitable intention which he has expressed (u). And the Court "is rather (n) Per Kindersley, V.-C., in Att.Gen. v. Marchant, L. R. 3 Eq. at P. 430. (0) Att.-Gen. v. Marchant, supra. (p) Att.-Gen. v. Mercers' Co., 18 W. R. 448. (4) Re Ashton's Charity, 27 Beav. 115; see also Att.-Gen. v. Smythies, 2 R. & M. 717. (r) Now Part II. of the Mortmain and Charit. Uses Act, 1888, post. (s) Att.-Gen. v. Whitchurch, 3 Ves. Jun. at p. 144; Att.-Gen. v. Boultbee, 22. (t) Moggridge v. Thackwell, 7 Ves. at p. 69; Cary v. Abbot, ibid. 490; Mills v. Farmer, 1 Mer. 55. (u) Mills v. Farmer, supra; Att.-Gen. v. Boultbee, 2 Ves. Jun. at p. 387; Att.Gen. v. Painters' Co., 2 Cox, 51; Cook v. Duckenfield, 2 Atk. at p. 569; Moggridge v. Thackwell, 7 Ves. at p. 87; One charity not substi tuted for another. astute in ascertaining some application in conformity more or less with the intention of the testator" (a). "The true mode is to consider what he (the testator) did, and from what he did to collect what were his inclinations with regard to charity" (y). You may "You cannot substitute one charity for another. substitute for a particular charity which has been defined and which has failed, another charity ejusdem generis, or which approaches it Su Biscoe v. Jackim in its nature and character; but you cannot take a charity which 357.8.461. was intended for one purpose and apply it to a purpose altogether different" (z). Cy-près means Residue given Contrary intention. Object selected need Cy-près means the nearest to that which has failed, not the nearest to other charitable purposes which may have been provided for by the testator (a). "The Court, when deciding whether the cy-près doctrine applies, looks only to the particular gift, and if it finds charity to be the legatee, sustains the legacy as such, without regarding at this stage of the inquiry (whatever may be proper when a scheme comes to be framed) the rest of the will" (b). It follows that the power of the Court to apply cy-près a charitable legacy which has failed is not affected by the fact that the residue is given to charity (c), or that there is a limitation over in favour of another charity (d). The testator may, however, himself evince a contrary intention, as by inserting a direction, whether express or to be gathered from the language he has used, that the bequest if it fails shall fall into residue (e). The charitable object for which a bequest is applied cy-près need not resemble not, however, bear any actual resemblance to the purpose named by the testator, so long as one bearing a close resemblance cannot be found (f). that named Att.-Gen. v. City of London, 3 Bro. C. C. (x) Per Lord Langdale in Att.-Gen. (2) Per Lord Westbury in Clephane v. R. 16 Eq. 129. (a) Att.-Gen. v. Ironmongers' Co., 10 Cl. & F. at p. 922. (b) Mayor of Lyons v. Adv.-Gen. of Bengal, 1 App. Cas. at p. 114. See Mills v. Farmer, 19 Ves. 486. (c) Mayor of Lyons v. Adv.-Gen. of Bengal, supra; Ironmongers' Co. v. Att.Gen., 10 Cl. & F. 908. (d) Re Parish of Upton Warren, 1 My. & K. 410. (e) Mayor of Lyons v. Adv.-Gen. of Bengal, supra, at p. 115. Cf. Corbyn v. French, 4 Ves. 431. (f) See per Lord Cottenham in Att.Gen. v. Ironmongers' Co., Cr. & Ph. at p. 227. |