Gift subject to specified trusts, or

upon specified conditions.

Specified trusts.

to belong to the donees beneficially. Thus, in Att.-Gen. v. Skinners' Co. (j), property was vested in the company upon trust to maintain a grammar school, and the surplus was directed to go "to the use and behoof of the Skinners' Company to order and dispose of at their wills and pleasures."

In Att.-Gen. v. Gascoigne (k), the surplus rents were expressly given to the executors beneficially.

But it is not necessary that there should be any express direction as to the disposal of the surplus income.

It is sufficient if it appears from the construction of the instruments that the property was intended to be held subject only to the execution of certain charitable trusts or the performance of certain conditions in favour of charity.

"Generally speaking . . . it will be assumed that he (the donor) intended to confer a benefit upon the donee, in the enjoyment of any increase of the fund, should such gift be to the donee, subject to certain payments to others; secondly, if the gift be upon condition of making certain payments, subject to a forfeiture upon non-performance of the condition; or, thirdly, if the donee might be a loser by the insufficiency of the fund, which, indeed, is consequential upon the last” (1).

If then it appears that there is an absolute gift, subject only to certain trusts in favour of charity, any surplus belongs beneficially to the donees (m).

Thus, where property is conveyed to a college to the intent that they shall maintain certain scholars (n) or schools (0), or to a city company, or a municipal corporation, for certain charitable purposes not exhausting the income (p), or to a university, subject to certain payments (7), the donees are beneficially entitled to any surplus. So, also, where the gift was to the dean and canons of Windsor,

(j) 2 Russ. 407; Re Jordeyn's Charity, 1 My. & K. 416; Mayor of Southmolton v. Att.-Gen., 5 H. L. C. 1; Mayor of Beverley v. Att.-Gen., 6 H. L. C. 310; Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. 369.

(k) 2 My. & K. 647.

(1) Per Lord Cottenham in Jack v. Burnett, 12 Cl. & F. at p. 828.

(m) Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294; Att.-Gen. v. Skinners' Co., 2 Russ. 407; Re Jordon's Charity, 5 Sim. 571; Att.-Gen. v. Cordwainers' Co., 3 My. & K. 534; Att.-Gen. v. Fishmongers' Co., 5 My. & C. 11; Att.-Gen. v. Brazenose College, 2 Cl. & F. 295; Jack v. Burnett, 12 Cl. & F. 812; Mayor of Southmolton v. Att.-Gen., 5 H. L. C. 1; All.-Gen. v. Grocers' Co., 6 Beav.

526; Att.-Gen. v. Jesus College, Oxford, 29 Beav. 163; Att.-Gen. V. Sidney Sussex College, L. R. 4 Ch. 722; Merchant Taylors' Co. v. Att.-Gen., L. R. 6 Ch. at p. 515; and see Att.-Gen. v. Wax Chandlers' Co., L. R. 6 H. L. at P. 19.

(n) Att.-Gen. v. St. John's Coll., Cambridge, Coop. t. Brough. 394; Att.-Gen. v. Brazenose College, 2 Cl. & F. 595; see also Att.-Gen. v. Sidney Sussex College, 34 Beav. 654; ibid., L. R. 4 Ch. 722.

(0) Att.-Gen. v. Trinity Coll., Cambridge, 24 Beav. 383.

(p) Att.-Gen. v. Skinners' Co., 5 Sim. 596; Att.-Gen. v. Grocers' Co., 6 Beav. 526; Mayor of Beverley v. Att.-Gen., 6 H. L. C. 310.

(1) Jack v. Burnett, 12 Cl. & F. 812.

subject to making certain payments for the poor knights of Windsor and others ().

In one case where charitable purposes were specified, and the surplus income was given for repairs, it was held that a proportionate part of the surplus belonged to the donees beneficially, subject to the duty of repairing (s).

charitable

In Att.-Gen. v. Smythies (t), a charitable corporation had been Surplus to created by letters patent under the name of "The Master and Poor master of of the College or Hospital of King James," to consist of a master corporation absolutely. and five poor persons, each of the five poor persons to receive a specified sum yearly; and it was ordained that the revenue should be applied for the support of the master and poor of the hospital, and the repair of the buildings. It was held that there was a gift of the whole to the master and paupers, and that, the amount receivable by the latter being ascertained, the surplus must go to the former.

ment between late and

master.

And where necessary there will be an apportionment between Apportionthe present master and the representatives of the late master (u). The principle of this decision was thus explained by Lord present Brougham (r): "If the gift is of the whole estate or fund to one, Explanation and another is to receive so much a year out of its rents and profits, given by Lord Brougham. that clearly gives the surplus to the first. Then, if the gift is to both, but so as one shall take yearly so much, is not this, in substance and effect, the same thing? The whole is given to both, not in fixed proportions, but with a certain amount to the one and the unascertained residue to the other. It is distributed, and their shares are ascertained, not by division but subtraction" (x).

It was held by Lord Eldon, in a case where the master and usher of a school of royal foundation were corporators, that as long as they remained so, and the visitor did not think proper to remove them, they must, in a court of justice, have the enjoyment of all the revenues which belonged to them by the same instrument that gave them the corporate character (y).

As a rule, however, surplus income exceeding a reasonable As a rule compensation for the duties performed will not be allowed to be allowed to

(r) Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. 369.

(8) Att.-Gen. v. Coopers' Co., 3 Beav. 29; but see the observations of Lord Cranworth in Mayor of Beverley v. Att.Gen., 6 H. L. C. at p. 324.

(t) 2 R. & M. 717; and cf. Re Ashton's Charity, 27 Beav. 115; Att.-Gen. v. Wyggeston's Hospital, 12 Beav. 113.

(u) Att.-Gen. v. Smythies, 16 Beav. 385.

(v) Att.-Gen. v. Smythies, 2 R. & M. at p. 741.

(x) Ibid. But the master was held not entitled to proceeds of sale of materials of buildings erected under a lease on land belonging to the charity, on the ground that they were part of the corpus of the charity estate.

(y) Ex parte Berkhampstead Free School, 2 V. & B. 134, 144.

master not

enjoy surplus enjoyed by the master for his own benefit. Thus, in Att.-Gen. v. Master of Brentwood School (z), where the endowment of a grammar school was vested in the master and wardens as a corporation, the master was held not entitled to the surplus income.

income.

Charitable corporation

donee.

Gift subject to condition in favour of charity.

Acceptance of obligation.

Gift expressed

That the donee takes the surplus beneficially is a result more readily accepted when it is itself a charitable corporation, as, for instance, a college (a), or a corporation existing for the public benefit, as a municipal corporation (6). And it has been pointed out that there is a great difference in this respect between a charitable and a trading corporation, because it is consistent with a charitable intention on the part of the donor that a charitable corporation should take the surplus beneficially (c). In these cases the mere fact of there being a surplus points to an intention to benefit the donee (d).

In other cases property is given subject only to the performance of certain conditions in favour of charity. In such a case, of course, the land is the land of the donee, and every accretion to the value of the land belongs to the donee, and the charity has a right to receive nothing more than the benefit of the condition (e).

In these cases there is this circumstance also present, that "if the devise is accepted the conditions must be fulfilled, and the money must be paid, whether the land devised is, or is not, adequate to make the payment " (ƒ).

And in any case where the donees have undertaken obligations to make payments to charity, as where they have entered into covenants and subjected themselves to liabilities which remain binding, whether the rents of the property increase or decrease, that is inconsistent with the notion of their taking the property merely as trustees (g).

A beneficial gift upon condition only of satisfying a charitable condition for purpose must be distinguished from cases where, although the gift

to be on

() 1 My. & K. 376; S. C. nom. Att.Gen. v. Tufnell, 12 Beav. 35; Att.-Gen. v. Governors of Atherstone School, 3 My. & K. at p. 555.

(a) Att.-Gen. v. Catherine Hall, Jac.

381.

(b) Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294; Mayor, &c. of Southmolton v. Att.-Gen., 5 H. L. C. at p. 12.

(c) Att.-Gen. v. Mayor of Bristol, supra; Att.-Gen. v. Trinity Coll., Cambridge, 24 Beav. at p. 399. See Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. at p. 406. As to division where the corporation is itself one of the charitable objects, see post, p. 137.

(d) Att.-Gen. v. Trinity Coll. Cambridge, supra.

(e) Att.-Gen. v. Christ's Hospital, 1 R. & M. 626; Jack v. Burnett, 12 Cl. & F. 812; Att.-Gen. v. Wax Chandlers' Co., L. R. 6 H. L. at p. 19, per Lord Cairns; and see Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. at p. 452; Re Richardson, Shuldham v. Royal National Lifeboat Institution, 56 L. J. Ch. 784.

(f) Per Lord Cairns in Att.-Gen. v. Wax Chandlers' Co., L. R. 6 H. L. at p. 19. See Att.-Gen. v. Dean and Canons of Windsor, 8 H. L. C. at p. 452; Att.Gen. v. Christ's Hospital, 1 R. & M. 626; Jack v. Burnett, 12 Cl. & F. 812.

(g) Att.-Gen. v. Mayor of Bristol, 2 J. & W. at p. 303; Jack v. Burnett, supra. See Att.-Gen. v. Merchant Venturers' Society, 5 Beav. 338.

whole income

is expressed to be "for the intent and purpose and upon con- charity, but dition" that certain specified payments shall be made, yet, never- exhausted. theless, the whole of the income is devoted to the charitable purpose. These cases come within the principle of the Thetford School Case (h), and any increase in income is applicable for the charity (i).

Usage for 350 years has been held to show almost conclusively Usage. that property is held by a corporation upon a charitable trust and not beneficially (k). And the Court will assume that long possession is founded on a good title (7).

frame

And a power to frame statutes and ordinances for the regulation Power to of the charity property implies that the donees of the power do not ordinances. take beneficially (m).

If the surplus is undisposed of, the donor or his representatives Resulting take it by way of resulting trust (n).

Postponed Application, Conditional Gift, &c.

trust.

Where there is an immediate gift for charitable purposes, it is Postponed not rendered invalid by the fact that the particular application application. directed cannot immediately take effect (o), or will not of necessity take effect within any assignable limit of time, and may never

take effect at all (p).

In Att.-Gen. v. Bishop of Chester (q) a legacy was bequeathed to Att.-Gen. v. Bishop of trustees for the purpose of establishing a bishop in his Majesty's Chester. dominions in America. It was contended that as there was no bishop of America, and no probability of there ever being one, the legacy was void. But Lord Thurlow directed the money to remain in Court until it should be seen whether such an appointment would be made (r).

So, also, where there was a gift for the erection and endowment Endowment

(h) Ante, p. 49.

(i) Att.-Gen. v. Wax Chandlers' Co., L. R. 6 H. L. 1; Merchant Taylors' Co. v. Att.-Gen., L. R. 6 Ch. 512.

(k) Att.-Gen. v. Mercers' Co., 18 W. R. 448. See also Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294.

(1) See Goodman v. Mayor of Saltash, 7 App. Cas. 633. And see further, post, p. 110.

(m) Att.-Gen. v. Mercers' Co., supra. (n) Att.-Gen. v. Mayor of Bristol, 2 J. & W. at pp. 307, 308; Att.-Gen. v. Dean and Canons of Windsor, 24 Beav. 679; and see Re Douglas, Obert v. Barrow, 35 Ch. D. at p. 483.

(0) Chamberlayne v. Brockett, L. R. 8

Ch. 206.

(p) Att.-Gen. v. Bishop of Chester, 1 Bro. C. C. 444; Att.-Gen. v. Oglander, 3 ibid. 166; Att.-Gen. v. Lady Downing, Amb. 571; Att.-Gen. v. Bowyer, 3 Ves. Jun. 714; Henshaw v. Atkinson, 3 Madd. 306; Att.-Gen. v. Earl of Craven, 21 Beav. 392; Philpott v. St. George's Hospital, 6 H. L. C. 338; and distinguish Re White's Trusts, 33 Ch. D. 449.

(q) Supra. See also Society for Propagation of the Gospel v. Att.-Gen., 3 Russ. 142.

(r) Ultimately a bishop of Canada was appointed, and the legacy then became applicable.

of future church, &c.

Inquiry.

Fund not retained

of a future church (s), or for the erection of almshouses when land should have been provided as therein mentioned (f), or to establish an institution as soon as a charter could be obtained (u).

In such cases an inquiry will be directed whether the fund can be employed for the objects named (x).

A fund will not be retained indefinitely awaiting the possiindefinitely. bility of its being applied to a specific object (y).

Intermediate income.

Conditional

gift.

Cherry v.
Mott.

Charitable trust for limited period.

Secret trusts.

In such cases the intermediate income is of course applicable to the charitable purpose, and there can be no resulting trust in respect of it (≈), and the arrears will be allowed to accumulate («).

These cases must be distinguished from those where the charity is itself conditional; for there may be a conditional legacy for a charity as well as for any other purpose (b). In that case, if the condition is never fulfilled, the estate never arises, and the intermediate income, if not disposed of, is not applicable to charity (c). In Cherry v. Mott (d) a testator directed a presentation to Christ's Hospital to be purchased if his personal estate should be sufficient. The personal estate was insufficient. It was held that the legacy was conditional, and that the personal estate being insufficient there was no gift.

A charitable trust may be created only for a limited time. Where this is so, then, at the expiration of such time, the fund will be paid over to the person who created the trust, or his representatives (e), or to the persons entitled in remainder; for there can, of course, be no cy-près application beyond the limit of the charitable trust (ƒ).

Secret Trusts.

Secret trusts in favour of charity are enforced, unless made for the purpose of evading the mortmain provisions (g).

(s) Sinnett v. Herbert, L. R. 7 Ch. 232. See also post, p. 140.

(t) Chamberlayne v. Brockett, L. R. 8 Ch. 206; Re White's Trusts, 33 Ch. D. 449.

(u) Abbott v. Fraser, L. R. 6 P. C. 96. In these cases, of course, no question of remoteness can arise: Chamberlayne v. Brockett, supra. See post, p. 56.

(x) Sinnett v. Herbert and Chamberlayne v. Brockett, supra.

(y) Sinnett v. Herbert, supra, at p. 241;
and see Re White's Trusts, 33 Ch. D.
449.

(z) Att.-Gen. v. Bowyer, 3 Ves. Jun.
at p. 726; Att.-Gen. v. Oglander, 3 Bro.
C. C. 166; Abbott v. Fraser, L. R. 6 P.
C. 96; Chamberlayne v. Brockett, supra.
(a) Att.-Gen. v. Bolton, 3 Anst. 820.
(b) Cherry v. Mott, 1 My. & C. at p. 132;

Chamberlayne v. Brockett, L. R. 8 Ch. at p. 211; Thomas v. Howell, L. R. 18 Eq. 198; Re Tunno, Raikes v. Raikes, W. N. 1886, 154; Re Roberts, Repington v. Roberts-Gawen, 19 Ch. D. 520; and see Att.-Gen. v. Molland, 1 You. 562; Robinson v. Wood, 27 L. J. Ch. 726.

(c) Att.-Gen. v. Earl of Craven, 21 Beav. 392.

(d) 1 My. & C. 123.
Cf. Yates v.
University College, London, L. R. 7 H.
L. 438.

(e) Att.-Gen. v. Pyle, 1 Atk. 435; Walsh v. Secretary of State for India, 10 H. L. C. 367; and see Re Sir Robert Peel's School at Tamworth, L. R. 3 Ch. 543. (f) Re Randell, Randell v. Dixon, 38 Ch. D. 213.

(9) See note (o) to sect. 4 of the Mortmain and Charit. Uses Act, 1888, post.