but to apply part at least of the 4007. in a manner forbidden by the statute; and inasmuch as the whole of so small a sum might well have been employed in building a school, an inquiry how much would have been sufficient for that purpose, as suggested in Chapman v. Brown, would be useless (z). In Kirkmann v. Lewis (a) the surplus which would remain after constructing a well and erecting a pump was considered to be unascertainable. given to We now come to the second class of cases before referred to, in Residue, after which the residue remaining, after satisfying a certain invalid satisfying illegal object, is given to charity; or, which is the same thing, where the purpose, gift is in effect a gift of the whole to charity, subject to so much, charity. if any, as may be required for satisfying the illegal purpose. In these cases no question as to ascertaining the amount required for the invalid purpose arises, for the result of the failure of that part of the gift is that the whole goes to the charity. To this head belongs a series of cases in which a fund has been given to trustees upon trust to apply the income in keeping a tomb in repair, and as to the remainder of the income for valid charitable purposes. In all these cases it has been held that the result of the failure of the trust for the repair of the tomb is, that the whole of the income becomes applicable for the charitable purpose (b). The case of Re Vaughan, Vaughan v. Thomas (c), illustrates both Re Vaughan, principles. There the income of a fund was directed to be applied Thomas. Vaughan v. first in keeping a family vault in repair, and as to the residue in keeping in repair a tomb and a churchyard, the repair of the churchyard being a valid charitable object. It was held (1) that so much of the income as would have been required to keep in repair the family vault fell into residue; and (2) that as to so much of the residue as was required for the repair of the tomb the gift failed, and as to the rest was good. A charitable bequest, in itself valid, but dependent upon a pre- Bequest vious invalid gift, fails also (d). (2) Cramp v. Playfoot, 4 K. & J. 479. See, also, Cherry v. Mott, 1 My. & C. at p. 133; Re Birkett, 9 Ch. D. at p. 579; and Re Taylor, Martin v. Freeman, 58 L. T. N. S. 538. (a) 38 L. J. Ch. 570. (b) Fisk v. Att.-Gen., L. R. 4 Eq. 521; Hunter v. Bullock, L. R. 14 Eq. 45; Dawson v. Small, L. R. 18 Eq. 114; Re Williams, 5 Ch. D. 735; Re Birkett, 9 Ch. D. 576; Re Vaughan, Vaughan v. Thomas, 33 Ch. D. 187; contra, Fowler v. Fowler, 33 Beav. 616. And see Re (d) Chapman v. Brown, 6 Ves. 404; dependent on previous void gift. Gift forming part of Thus, where a bequest was made for building a chapel, which was void under 9 Geo. II. c. 36 (e), a direction to apply a portion of the surplus in providing a minister failed also (ƒ). Where a house was devised for a master of a school, and a sum of money bequeathed for providing a master, the devise being void the bequest also failed (g). So where there is a bequest for the erection of a building, which fails, a bequest for its endowment cannot be supported (h). A gift valid in itself was held to fail because it formed part of a impracticable scheme which could not be carried into effect (i).. scheme. Prior valid gift not affected by invalidity of dependent gift. Revoked legacies not set up by failure of substituted bequest. Foreign charity disclaimed. Legality of foreign charity de termined by lex loci. Inquiry as to legality. Surplus income. Question of construction. Where, on the contrary, the first gift is valid and the dependent gift invalid, the validity of the first is, of course, not affected (4). Where a testator by a codicil revokes charitable legacies well given by will, and substitutes invalid charitable purposes, the legacies given by the will are not set up by the failure of those substituted by the codicil (7). A gift necessarily fails where it is for the establishment of a charity in a foreign country, and the trustees named, being foreigners, disclaim the trusts; for in such a case the Court has no power to enforce the trust or to settle a scheme (m). The question whether a specified charitable purpose is legal or not, is one which must be determined according to the laws of the country in which the trusts are to be carried into effect (n). In one case an inquiry was directed as to the legality in Scotland of the purpose named by the testator (o). Surplus Income. It frequently happens that a donor has specifically named certain charitable objects which do not exhaust the whole income of the property, or that, although the whole income of the property was originally exhausted, there has been a subsequent increase. In cases of this kind questions of some complexity arise as to who is entitled to the surplus. The question is purely one of construction. "We must look at the instruments to be construed, and see whether, taking them (e) Now Part II. of Mortmain and (f) Chapman v. Brown, supra. (h) Green v. Britten, 42 L. J. Ch. 187; altogether, we discover an intention on the part of the donors that the rents should be divided in certain proportions, and given to the different objects of the bounty of the donors in those proportions, or whether the intention manifested is, that specified sums should be permanently paid to particular objects of the bounty of the donors, and that they should be entitled to nothing more than the payment of these specified sums, without abatement and without augmentation” (p). devote whole The rule is, that if the donor has manifested an intention that Intention to the whole of the income of the property shall be applied in charity, income to any subsequent increase in the amount of the income will also be charity. so applicable, and no part of the original income or of the subsequent increase can be beneficially enjoyed by the donees in trust. The mode in which the surplus income, when applicable to charity, is dealt with is treated of in Chapter VI. There may, in the first place, be an express direction, as where Gift of whole the whole rents are given for a charitable purpose (7). Similarly, if the donor specifies certain charitable objects, and then disposes of the whole of the residue of the income for a charitable purpose (r). income. v. Wax In Att.-Gen. v. Wax Chandlers' Co. (s), property was devised to Att.-Gen. the company "for this intent and purpose, and upon this condition, Chandlers' Co. that they shall yearly distribute eight pounds of lawful money of England after this manner;" specific objects were then named, exhausting the eight pounds; and the devise continued:-" And the rest of the profits of the said houses and tenements I will shall be bestowed upon the reparations of the said houses and tenements;" and it was held that, inasmuch as the whole of the income was dedicated to charity, any increase must be devoted to the same purpose. expressed that So, also, if, although the testator does not exhaust the whole in- Intention come, he expressly states a desire to devote the whole to charity (t), whole shall go or makes a general disposition of his property for charitable pur- to charity. poses (u), or otherwise manifests an intention to devote the whole (p) Per Lord Campbell in Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. at pp. 393, 394; see also p. 406. 71. (q) Kennington Hastings' Case, Duke, (r) Att.-Gen. v. Earl of Winchelsea, 3 Bro. C. C. 373; Att.-Gen. v. Hartley, 4 Bro. C. C. 412; Att.-Gen. v. Minshull, 4 Ves. 11; Att.-Gen. v. Solly, 5 L. J. Ch. 5; Att.-Gen. v. Caius College, 2 Keen, 150; Merchant Taylors' Co. v. Att.-Gen., L R. 6 Ch. 512; Att.-Gen. v. Wax (8) L. R. 6 H. L. 1; see also Merchant (u) Att.-Gen. v. Sparks, Amb. 200, Att.-Gen. v. Haberdashers' Co., 4 Bro. C. C. 103; S. C. nom. Att.-Gen. v. Tonna, 2 Ves. Jun. 1. Att.-Gen. v. Winchelsea. Intentions presumed, where objects specified to charity (x), the whole of any subsequent increase will be appli cable to charity. In Att.-Gen. v. Earl of Winchelsea (y) the testator gave the residue of his personal estate to trustees upon trust to pay 127. a year to a schoolmaster for the children of a certain parish, 20s. for the purchase of books, and to apply any surplus income in clothing and putting out apprentices to any trade, business, or occupation, two children of the said parish and one of another parish. It was held that, the residue being more than adequate to the number of the objects of the charity, the surplus was applicable to similar purposes. "The question," said Arden, M. R., "is, whether the whole surplus of this personal estate is not intended to go to the charitable purposes mentioned in the will, though more than sufficient to answer the exact number of the objects there specified. The real intention of the testator is perfectly clear, that he meant to give the whole surplus." He then cited the cases of Att.-Gen. v. Bishop of Oxford (), and Att.-Gen. v. Goulding (a), and proceeded:-"Whereever the intention has been to dispose of the whole property to certain purposes, as in the early case of Thetford School (b), and numerous subsequent authorities, the whole has been applied: the intention has been considered as such, and it has been only inferred that the testator has been mistaken as to the quantum. It has been observed as a strong mark of his intention, that by giving the apprentice fees to three objects, he has marked out the limits of his bounty, and that the confining it to that number will be a sufficient compliance with his intention; but, according to the disposition of this residue, his intention could not be limited to three boys; and if he would pay more, the testator has shown an intent that the surplus beyond that must be applied in the same manner; therefore I am of opinion it must be applied to the charitable purposes mentioned in the will; perhaps it may not turn out to be much more than sufficient, but if it should, the next of kin may then come to the Court, as in other cases, where there has been an increase of rents and profits." Again, if the donor, without making any general declaration as to devoting the whole income to charity, nevertheless names specific charitable purposes which exhaust the whole income, that (x) Att.-Gen. v. Drapers' Co., 2 Beav. 508; Ibid., 4 Beav. 67; Att.-Gen. v. Christ's Hospital, 4 Beav. 73; Att.-Gen. v. Painters' Co., 2 Cox, 51; Pieschel v. Paris, 2 S. & S. 384; and see Mayor of Southmolton v. Att.-Gen., 5 H. L. C. at p. 32; Mayor of Beverley v. Att.-Gen., 6 H. L. C. at p. 319; Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. 369. (y) 3 Bro. C. C. 373. exhaust exhaustion indicates an intention to devote the whole to charity. which In this case, also, therefore, any subsequent increase will go to income. charity. The Thetford School Case (c) is the leading authority for this proposition. And the same result occurs where it appears that the donor Intention to thought he was disposing of the whole income (d). exhaust income. So, also, where the surplus undisposed of was insignificant, and Surplus very there was a direction that the particular payments should abate small. proportionately in the event of depreciation of the property, the inference was that they were in like manner to share proportionately in any increase (e). But the difference between 667. 13s. 4d. and 657. 3s. 4d. was not considered to be insignificant, and the surplus revenues were held to belong to the donees beneficially (ƒ). charitable The case is different where no intention of devoting the whole No general income to charity is manifested, and the particular charitable intention, and payments directed to be made, or the particular charitable purposes income not directed to be satisfied, do not exhaust the whole proceeds of the property. exhausted. In this case the right of the charity is limited by the extent of Right of the trust created in its favour (g). "If I give an estate to trustees, be extended charity cannot and take notice that the payments are less than the amount of the beyond trust. rents, no case has gone so far as to say, that the cestui que trust, even in the case of a charity, is entitled to the surplus" (h). And this will be so even though the specific payments directed to be made for the charity have become, by reason of the decrease in the value of money, insufficient to carry out the charitable intention of the donor (i). Sometimes there is an express direction that the surplus is Express gift of surplus. (e) 8 Co. 130 b; and see Inhabitants of Eltham v. Warreyn, Duke, 67; Sutton Coldfield Case, Duke, 68; Att.-Gen. v. Townsend, Duke, 34; Henshaw v. Corporation of Morpeth, Duke, 69; Lad v. London City, Mos. 99; Att.-Gen. v. Mayor of Coventry, 2 Vern. 397; Att.-Gen. v. Johnson, Amb. 190; Att.-Gen. v. Green, 2 Bro. C. C. 492; Att.-Gen. v. Coopers' Co., 19 Ves. 187; Att.-Gen. v. Mayor of Bristol, 2 J. & W. at p. 322; Att.-Gen. v. Barham, 4 L. J. Ch. 128; Att.-Gen. v. Gilbert, 10 Beav. 517; Att.-Gen. v. Marchant, L. R. 3 Eq. 424; see also Att.-Gen. v. Brazenose College, 2 Cl. & F. at p. 328; Mayor of Southmolton v. Att.-Gen., 5 H. L. C. at p. 32; Mayor of Beverley v. Att.-Gen., 6 H. L. C. 310; Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. 369. T. (d) Att.-Gen. v. Wilson, 3 My. & K. 362; Att.-Gen. v. Marchant, L. R. 3 Eq. 424. (e) Mercers' Co. v. Att.-Gen., 2 Bli. N. S. 165; in this case the surplus undisposed of was only 98. (f) Att.-Gen. v. Brazenose College, 2 Cl. & F. 295. (g) Att.-Gen. v. Cordwainers' Co., 3 My. & K. 534; Att.-Gen. v. Liddell, 19 W. R. 297. (h) Per Lord Eldon in Att.-Gen. v. Mayor of Bristol, 2 J. & W. at pp. 307, 308; and see Att.-Gen. v. Brazenose College, 2 Cl. & F. at pp. 328, 329; Att.Gen. v. Skinners' Co., 2 Russ. at p. 435; Att.-Gen. v. Smythies, 2 R. & M. at pp. 740-742. (i) Att.-Gen. v. Gascoigne, 2 My. & K. 647; Commissioners of Charitable Donations v. Clifford, 1 Dr. & W. 245. E |