devote the fund generally to charity (y). For, except where the fund is intended in any event to be given to charity, a gift to a charitable institution which has expired is as much a lapse as a gift to an individual who has expired (z). Where a testator, after manifesting an intention to give a certain Names of sum for charitable purposes, leaves blanks for the names of the charities left charities the bequest is good (a). blank. In some cases a gift is supported, although the object specified Illegal object. is illegal, the Court laying hold of the charitable intention and applying the gift to some charitable purpose which is not illegal (b). This has been the case where the gift has failed on the ground of Superstitious being superstitious (c). use. for paupers. or Inquiry whether gift legal. period. A legacy for providing the inmates of a workhouse with porter, Legacy to which was illegal under 4 & 5 Will. IV. c. 76 (d), was directed to provide porter be applied in providing them with tea, sugar, and the like (e). And an inquiry may be directed whether a gift is legal not (f). Where a testator directed funds to be provided for certain charity- Accumulation schools by accumulating his property, but fixed no time for the beyond legal continuance of the accumulation, which must have necessarily exceeded the legal period, it was held that although, in consequence of the direction to accumulate being void, the particular mode in which the testator meant his bounty to be applied could not take effect, yet that as the personal estate was devoted to charitable purposes, the charitable intention ought to be carried into effect by means of a scheme (g). Where the gift contravenes the Mortmain Statute (), it cannot, Not gift void of course, be carried into effect (i). (y) Post, p. 40. (2) Fisk v. Att.-Gen., L. R. 4 Eq. at p. 528; Re Ovey, Broadbent v. Barrow, 29 Ch. D. at p. 564. (a) Pieschel v. Paris, 2 S. & S. 384. Otherwise if the amount is left blank : Hartshorne v. Nicholson, 26 Beav. 58, See post, p. 42. (b) Per Lord Eldon in Moggridge v. Thackwell, 7 Ves. at p. 75. (c) Da Costa v. De Pas, Amb. 228; Att.-Gen. v. Guise, 2 Vern. 266; De Garcin v. Lawson, 4 Ves. 433, n.; Cary v. Abbot, 7 Ves. 490; Att.-Gen. v. Power, 1 Ball & B. 145; De Themmines v. De Bonneval, 5 Russ. 288; Att.-Gen. v. Todd, 1 Keen, 803; Re Young, 7 Ir. R. Eq. 218. Since the passing of the (d) Poor Law Amendment Act, 1834, (e) Att.-Gen. v. Vint, 3 De G. & Sm. 704. (ƒ) Russell v. Jackson, 10 Hare, 204; (h) Formerly 9 Geo. II. c. 36, now under Mortmain Act. In what Cases Gift fails. Property of In order that a gift may be supported under the rule that a definite or ascertainable general charitable intention will be effectuated (1), it must be of such a character that property, of definite or ascertainable amount, is devoted to purposes necessarily charitable within the meaning of the Statute of Elizabeth. amount must be given to charity. Indefinite purpose not charitable. Private charity. General benevolence and liberality. Morice v. Bishop of A gift for an indefinite purpose, which is not charitable within the meaning of the Statute of Elizabeth, will not, of course, be supported. Thus, a gift to be distributed "in private charity," not being charitable, is too vague to be supported (m). "There is no case," said Plumer, M. R. (»), “in which private charity has been made the subject of disposal in the Crown, or been acted upon by this Court. The charities recognized by this Court are public in their nature; they are such as the Court can see to the execution of. In this case the difference is obvious; if a party is to execute the purpose of this testator, he cannot give to public charities; the disposition must be confined to private chartiy. In what respect does private charity differ from benevolence? Assisting individuals in distress is private charity; but how can such a charity be executed by the Court or by the Crown? In all cases the general principle is, that the trust must be of such a tangible nature as that the Court can deal with it; when it is mixed up with general moral duty, it is not the subject of the jurisdiction of a Court of justice. Private charity is in its nature. indefinite; how can it be controlled, how can it be carried into execution? As a general purpose of charity the object of this testator cannot be carried into execution; as a trust it is not sufficiently specific or definite. The sum in question must therefore go to the next of kin." And in Nash v. Morley (o), it was said that the Court would only support trusts which it could itself execute, or in relation to which it could exercise control over the trustees. So, also, a gift to objects of general benevolence and liberality, which need not necessarily include any charitable object, will not be supported. In Morice v. Bishop of Durham (p), where the residuary personal estate was bequeathed to such "objects of benevolence and liberality" as the executors should approve, Grant, M. R., in giving judgment, said (g): "Supposing the uncertainty of the trust no objection to its validity, could it be contended to be an abuse of the trust to employ this fund upon objects which all mankind would allow to be objects of liberality and benevolence, though not to be said, in the language of this Court, to be objects also of charity? By what rule of construction could it be said, all objects of liberality and benevolence are excluded which do not fall within the Statute of Elizabeth? The question is, not whether he may not apply it upon purposes strictly charitable, but whether he is bound so to apply it? . . . . . Here there is no specific purpose pointed out to which the residue is to be applied; the words 'charity' and 'charitable' do not occur: the words used are not synonymous: the trusts may be completely executed without bestowing any part of this residue upon purposes strictly charitable. The residue, therefore, cannot be said to be given to charitable purposes; and as the trust is too indefinite to be disposed of to any other purpose, it follows that the residue remains undisposed of, and must be distributed among the next of kin of the testatrix." charitable, Similarly, a bequest for such benevolent, charitable, and religious Benevolent, purposes as the trustees should think most advantageous and and religious beneficial, was held void for uncertainty (). Here, also, it will be purposes. observed that it would have been no breach of trust if the trustees had applied no part of the fund to charity. words cut down to mean It may, however, appear upon the construction of the will that Indefinite words which, taken alone, might be wide enough to include other than charitable objects, are to be cut down so as to include only charitable purposes which the law holds to be charitable. In this case, of purposes. course, the whole bequest is charitable, and its indefinite character is consequently no objection to its validity. In determining this question of construction the will must first, according to the ordinary rule, be carefully considered for the purpose of ascertaining whether, according to its true construction, the gift is charitable or not, and that having been determined, the gift must be dealt with accordingly. (2) At pp. 405, 406. This decision was affirmed by Lord Eldon, 10 Ves. 522. See also James v. Allen, 3 Mer. 17; Thomson v. Shakespeare, John. 612; Fowler v. Garlike, 1 R. & M. 232; Stubbs v. Sargon, 2 Keen, 255; Harris v. Du Pasquier, 20 W. R. 668; Budget v. Hulford, W. N. 1873, 175; and cf. Re Sir (r) Williams v. Kershaw, 5 Cl. & F. Charities and purposes. In Dolan v. Macdermot (s), a bequest of personalty "for such other public charities and other public purposes as lawfully might be in the parish of T.," was held a good charitable bequest, the latter words being considered to mean purposes ejusdem generis with the former, and therefore charitable, and to be intended to describe purposes held by the law to be charitable, but not within the popular meaning of the term. Charitable objects. So, also, a bequest for "charitable and deserving objects" has and deserving been held good on the ground that one class of objects only was intended, and that the word "charitable" governed the whole sentence (f). And a similar decision was arrived at where a bequest was to be divided among such "charities, societies, and institutions," as a specified person should determine (u). Alternative gift. Charitable or other purposes. Again, where a discretion is left to the executors to apply a bequest either to general charitable purposes, or to purposes of an uncertain and indefinite character not necessarily charitable, the bequest will not be supported. The reason is that in this case, also, it is not obligatory on the executors to apply any part of the gift to charity (x). Thus, where a fund is given for such charitable or other purposes as the trustees may think fit (y), or for charitable or benevolent purposes (), or to be expended in "acts of hospitality or charity" (a), or to be disposed of either for charitable or public purposes, or to any person or persons as the executors should think fit (b), the charitable trust is too indefinite to be supported. Similarly, a bequest to trustees to be applied for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility, will fail (c). So, also, a bequest for " deserving literary men, or to meet expenses connected with my manuscript works" (d). (s) L. R. 3 Ch. 676. In the Scotch (t)_Re Sutton, Stone v. Att.-Gen., 28 (u) Re Douglas, Obert v. Barrow, 35 (x) Vezey v. Jamson, 1 S. & S. 69; Ellis v. Selby, 1 My. & C. 286; Down v. Worrall, 1 My. & K. 561; Re Jarman's Estate, Leavers v. Clayton, 8 Ch. D. 584; Re Hewitt's Estate, Mayor, &c. of Gateshead v. Hudspeth, 53 L. J. Ch. 132; Re Woodgate, 2 Times L. R. 674; see also cases collected in note to Loscombe v. Wintringham, 13 Beav. 89. (y) Ellis v. Selby, supra. (z) Re Jarman's Estate, Leavers v. Clayton, supra; Re Hewitt's Estate, Mayor, &c. of Gateshead v. Hudspeth, supra; Re Riland's Estate, Phillips v. Robinson, W. N. 1881, 173; see also Horde v. Earl of Suffolk, 2 My. & K. 59, and the observations thereon of Lord Cottenham in Ellis v. Selby, 1 My. & C. at p. 293. (a) Re Hewitt's Estate, Mayor, &c. of Gateshead v. Hudspeth, 53 L. J. Ch. 132. (b) Vezey v. Jamson, 1 S. & S. 69; Buckle v. Bristow, 13 W. R. 68; Harris v. Du Pasquier, 20 W. R. 668. (c) Kendall v. Granger, 5 Beav. 300. p. 399. In Down v. Worrall (e), a testator gave his residuary personal Down v. estate to trustees upon trust to settle such part as he might himself Worrall. fail to appoint, at their discretion, either for pious and charitable purposes, or otherwise for the benefit of the testator's sister and her children. The testator made no appointment. The trustees applied part for the benefit of the testator's sister and her children, and part for charitable purposes, but left a sum of 5007. unapplied. It was held, that this 5007. was undisposed of, and went to the next of kin, on the ground that the trustees had a personal discretion as to the application of a fund, and had died without exercising that discretion. The distinction was noticed by Wood, V.-C., in Salusbury v. Denton (f), where he said :-" It is one thing to direct a trustee to give a part of a fund to one set of objects, and the remainder to another; and it is a distinct thing to direct him to give 'either' Down v. Worrall was a case to one set of objects 'or' to another. of the latter description. There the trustees could give all to either of the objects. This is a case of the former description. Here the trustee was bound to give a part to each." purpose If a fund is given to such charitable uses as the donor shall Charitable afterwards name, and the charitable purpose is revoked or dropped revoked or by a subsequent instrument, the gift fails. Thus, in Wheeler v. Sheer (g), the testator gave the residue of his personal estate to be employed for such charitable uses as by codicil he should appoint. By a codicil he directed that the residue should be applied to such uses and purposes as by any other codicil or codicils should be directed; but he did not name any charitable purposes. He made two subsequent codicils, but gave no direction with regard to the disposition of his personal estate. Lord King held the bequest void. Lord Eldon (4) explained the decision as proceeding on the ground that the charitable purpose being dropped by the codicil, and the general use and purpose only mentioned, there was something like a revocation of the will; the case being accordingly reduced precisely to what it would have been if by the will only general uses, intents, and purposes had been mentioned, and not charitable purposes. dropped. Where legacies are given to persons, not beneficially, but for Charitable purposes to be subsequently named, and such purposes are not intention not named and there is nothing in the will to show that they were (e) 1 My. & K. 561. (f) 3 K. & J. at p. 539; ante, p. 32. (g) Mos. 288. As to cases in which the charitable purpose is not revoked, but there is merely an omission to name p. 79. presumed. |