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to the almshouses, as to the school.” Upon an information for carrying the trusts of the will into execution, the committee of the orphan hospital thereby offering to give the ground, the next of kin insisted, that the bequest of 50001., and of the residue for the charitable foundation, was void.
Sir W. Grant, M. R., held, that it was a bequest of a residue to be laid out in land, from which two consequences followed—first, that such bequest was void ; secondly, that the bequest for erecting almshouses was void, because they were to be erected only by what he considered a purchase of land. He said, “ It may be, if the whole scheme might be carried into effect, that the Orphan School might have a benefit, for there might be a surplus; and only what was equivalent to the land for the almshouses, was to be applied. But it was impossible to make an apportionment, and to declare the bequest of the residue void for part, and good for the rest; the testator's wish was to connect the almshouses and the Orphan School, and to benefit the latter, because of the benefit he expected from the school; it was only on account of their contributing to his plan that he gave to them ; the bequest of the residue was, therefore, held wholly void.” This decree was afterwards affirmed by Lord Eldon, who considered the school to be a voluntary society, and if they happened to have land which they could furnish, it was not at that time in mortmain in the sense of the statute (l).
A bequest of a sum of stock to be laid out, when an opportunity offered, in building a chapel for the New Church (meaning a church for worship according to the doctrines of Baron Swedenborg), and to contribute the same towards its building and support, was declared to be void (m).
2. How far a testator's intention may be effected by hiring land, or by a gift from others.] It appears to have been decided by Lord Hardwicke, where money was given towards erecting
(1) Attorney General v. Davies, 9 p. 135. Ves. 535, 545. See Attorney Gene- (m) Pritchard v. Arbouin, 3 Russ. ral v. Day, i Ves. sen. 218; ante, 456.
a school, that the end might be obtained by hiring a house, which was directed for ever (n); and, in another case, where the residue of personal estate was given for erecting an hospital (which the same learned judge construed founding), he said, although the trustees could not, under the direction of the court, invest in the purchase of land, yet that the trust might be executed by hiring a house, or by building by permission on land already in mortmain (0). So a bequest of the dividends of stock, to stand for ever in a trustee's name, if it could be done, otherwise to be transferred to trustees for establishing a school in a particular parish, appears to have been held good, on the ground that the master might teach in his own house or in the church (p).
But it has since been determined, that a direction to take a lease for the purposes of the charity will render the gift void. Thus where a testator gave all his real and personal estate to trustees, with directions, that as soon as conveniently might be after his decease, a commodious and proper house should be taken by them in Bridgewater upon lease, at such yearly rent as should be agreed upon, or otherwise, as they should think fit, as a school; and that the children and grandchildren of his relations (whom he named) should be placed there for their education at the age of seven years and till fourteen, then to be placed out apprentices with a suitable fee. He also directed that such other boys and girls should be placed at the same school as the trustees should think fit, the boys to be in a double proportion to the girls; that this foundation should be under the visitation of the mayor of Bridgewater, and that there should be an inscription of the founder's name and benefactions over the door. The heir and next of kin claimed in opposition to this trust, under the statute of mortmain. The Lord Chancellor held, that the testator intended to make a permanent establishment, either by purchase or taking a lease, and that hiring a house at will would not have been a good execution of the trust; and, therefore, that the disposition, as far as it went to establish a charity for general purposes, was void by the statute ; but the gift was held good, so far as it provided for the education of the children and grandchildren of any of the stocks named in the will who were in existence at the testator's death, who did not come within the rule against perpetuities, with liberty for other children to go whilst the school should be kept open (9).
(n) Cantwell v. Baker, cited 2 Ves. (p) Attorney General v. Williams, sen. 185.
4 Br. C. C. 526; S. C. 2 Cox, 387. (0) Vaughan v. Farrer, 2 Ves. sen. See post. p. 182. 189. See 9 Ves. 542.
Where the testatrix's intention was that part of the fund, if necessary, should be laid out in land, Lord Thurlow expressed an opinion, as her general desire was that the charity should be executed, that her intention would not be defeated if land were acquired by other means; and that if land were given, no part of the bequest could be withheld from the maintenance of the charity ; but Lord Eldon said, with reference to that case, that he knew Lord Thurlow's opinion was where a testator directs a school to be built, and does not himself advert in his will that the land is to be acquired otherwise than by purchase, it will be inferred that his intention was that it should be acquired by purchase, and then the bequest is void (r); and, in a subsequent case it was said, that if the testator's original intention be that land should be purchased, an offer to give land will not remove the objection (s).
Where a testator directed his executors, “with all convenient speed, to lay out and invest the sum of 71001. (part of his personal estate) in government funds or securities, in the names of the minister for the time being of the parish of Brighthelmstone, and such three other inhabitants of the said parish as to his executors should appear to be substantial and respectable persons, to hold as trustees for the purposes thereinafter mentioned ; and the testator directed the minister and other trustees, in concurrence with the churchwardens and overseers of the parish for the time being, from time to time to pay, apply and dispose of the interest and dividends of such funds or securities in manner following, that is to say-first, in paying the expenses of providing a proper school-house for the instructing of twenty poor girls of the parish in needle-work, reading and writing ; such expense of providing a school not to exceed the annual interest and dividends of so much or such part of the stocks or funds wherein the said 71001. should be invested, as at the time of such investment should be of the value of 6001. of lawful money of Great Britain; and gave other particular directions as to the management of the school and the interest and dividends of the funds." Sir J. Leach, V.C., said, with respect to the school, the single question is whether, to execute the expressed purpose of the testator, land must be purchased for erecting a school. The testator has directed only, that a proper school-house should be provided, which may be by hire; and it is some evidence of his intent that land should not be bought, that the trustees are only to apply the dividends, and no part of the principal, to the expense of providing a school-house. It is said he meant the charity to continue for ever; but this intent may be executed without necessity for the purchase of land (t).
(9) Blandford v. Thackerell, 2 Ves. jun. 238; S. C. 4 Br. C. C. 394.
(r) Attorney General v. Nash, 3 Br. C. C. 588, 595 n. by Belt, cited
by Lord Eldon, 8 Ves. 191. See ante, pp. 176, 177.
(s) Attorney General v. Daries, 9 Ves, 535, 541, 544. See ante, p. 177.
Sir L. Shadwell, V. C., said, that the previous authorities were not affected by the above decision, because the testator had directed the interest of so much only of the larger fund, (which he directed to be applied for charitable purposes) as should not exceed 6001. to be applied for providing the schoolhouse. It was perfectly obvious, therefore, that such direction never could be meant to be a direction to build, for there could only be an annual sum of 181. applied ; in point of fact it was only the interest of so much of the fund as should not exceed 6001. that was applicable to providing the school-house (u).
It seems that where a will contains no direction to acquire land, that a gift for charitable purposes may be good, although an expectation is expressed by the testator that lands will be
(1) Johnston v. Swann, 3 Madd.
(u) Giblett v. Hobson, 5 Sim. 661.
supplied by others, for carrying the objects of his bequest into execution; and where it was objected that the testator's intention was that bequests of sums of money for charities were not to take effect until lands or buildings were supplied by others, and that the money might be locked up for an indefinite period of time, and therefore that the bequest could not be sustained, Sir J. Leach, V.C., said (v), although the point was not then decided, that the cases of Downing College (w) and the Attorney General v. Bishop of Chester (x), seemed to be authorities against such an objection.
Where a testator directed the dividends of certain sums in the public funds to be applied for or towards establishing a school in a parish named in his will, and he afterwards declared his meaning to be that the schoolmaster should not have a less salary than 301. per annum, and that the overplus of the dividends should be applied in buying books, fire, clothes and other necessaries for the children, and in placing them out as apprentices, but no part of the dividends to be applied for victuals, drink, or lodging, for the said scholars. There not appearing to be any school in existence, the court thought that under such a bequest, even before the statute of mortmain, that it would bave been excluded from applying any part of the fund in purchasing land or building, and bound to apply the funds in the supply of the particular articles mentioned, whenever the school should be established; and a decree was made for executing the charity, and for the Master to consider a scheme which should not include the application of any part of the dividends to the purchasing or renting land (y).
The authorities may perhaps warrant the conclusion that a bequest to build upon land to be given by others for the purposes of the particular charity specified by the testator, will be valid, provided land be afterwards legally acquired for the
(v) Henshaw v. Atkinson, 3 Madd. (x) i Br. C. C. 444. 313. See post. 187, 188.
(y) Attorney General v. Williams, (w) Dick. 414; S. C. Wilmot's 2 Cox, 387; S. C. 4 Br. C. C. 526. Notes, 1 ; ante, p. 140.