198

of the parties is under the control of the trustees, is very different from a charity for poor men and women in general. I cannot create another charitable object for him, or apply this to any different object so as to be warranted in saying, I fulfil the intention (n)."

Where a testator, who had by deed inrolled caused lands to be conveyed to trustees for charitable purposes, died within twelve months after its execution, having by his will made several bequests by reference to the trusts of the deed, it was held, that all the bequests failed because their validity depended on the deed (o). A recital in a will, that property consisting of mortgages had been given by deed, which failed not by any defect in the instrument itself, but in consequence of the grantor not having lived to the period prescribed by the statute for rendering the deed effectual, was held not to operate as a confirmation, or by way of relation, so as to pass the property thereby assigned to a college, which was capable of taking the benefit intended (p).

Where a plain trust and disposition to a charitable use are manifested by the will, and intended throughout; but that disposition is also attended with a certain degree of personal bounty and favour to particular objects, the case will not be taken out of the statute, unless the personal bounty can be totally separated from the general object, in respect of which they are to have the preference. Thus where there is a general disposition to a charitable use, and the testator appoints the first preacher to exercise that function, the case is not taken out of the statute the principle being, that mere personal favour, confidence, and benefit too, manifested clearly by a preference made in favour of a particular individual, as the first object of the testator's bounty, will not separate the favour from the void trust.

Thus where a testatrix, having endowed a chapel at Fakenham, directed by her will that 6007. should be in

304.

(n) Attorney General v. Whit- (0) Price v. Hathaway, 6 Madd. church, 3 Ves. 141. See Blandford v. Thackerell, 2 Ves. jun. 238; S. C. 4 Br. C. C. 394; ante, p. 180.

(p) Attorney General v. Munby, 1 Mer. 327.

vested in the purchase of lands and some small annuities, to be paid out of the rents, she directed all the residue to be paid, in equal moieties, one to her friend, T. Mendham, for life, the other to her friend Eastaugh for life; and, after the death of Mendham, one-third part of the interest or rents to be paid to the preacher or teacher who should statedly officiate in the chapel at Briston, belonging to Mendham; the other two-thirds to Eastaugh for life, he and the said preacher exchanging upon the Lord's Day alternately, the one at Fakenham, the other at Briston, provided that Mendham and Easthaugh did not voluntarily withdraw from and refuse officiating, when able, at the said Fakenham chapel, as usual; if they did, the share of him or them, during such recess, to cease and go to the preachers appointed in his or their room; and after the death of the survivor of Mendham and Easthaugh, the interest or rents to be paid for ever to the successive preachers, who should be chosen by the trustees of Fakenham and the trustees and major part of the communicants of Mendham chapel, at Briston; it was also provided, that in case Easthaugh should discontinue to preach at the chapel, he should take nothing under the devise."

Lord Thurlow made a decree, containing a declaration that the devise was not void, so far as it respected the immediate annuitants; but it was decided by the Lords Commissioners that the two ministers named in the will had not an interest which could be separated from the trust, which failed; for although a personal bounty was intended for them by the testatrix, yet it flowed from a confidence in them in their character of the ministers of the chapels, and no benefit was intended for them distinct from their officiating at the chapels (9).

We have already shown that gifts of money, to be expended in building on lands not in mortmain, to be used for charitable purposes, are void (r). The cases also uniformly decide that if

(q) Grieves v. Case, 1 Ves. jun. T. R. 264; ante, p. 144.

548; S. C. 2 Cox, 301; ante, p. 169.

See Doe d. Phillips v. Aldridge, 4

(r) Ante, pp. 168-178.

the money given is to be employed, in the first instance, in purchasing land for buildings, in which the charitable objects are to be carried on, and the surplus is to be employed for the benefit of the persons who are to live in such buildings, which cannot be obtained without violating the provisions of the statute 9 Geo. II. c. 36, a gift for those persons which, if standing alone would have been valid, will fail altogether. Thus, though money may be given to an infirmary or a school, yet, if such bequest is connected with a purpose of building an infirmary or a school, and the money is then to be laid out upon it when so built, the purpose, which is the foundation failing, the superstructure must fail with it (s).

When an undefined portion of a fund is given to a void charity, and the residue of such fund for legal charitable purposes; but it cannot be ascertained how much was intended or would be required for the illegal object, the gift will fail altogether (t).

Thus where the residue of real and personal estate was bequeathed to executors, in trust, to build or purchase a chapel, where it might appear to be most wanted, and any overplus which should remain, after purchasing or building the same was directed to go towards the support of a faithful gospel minister (not exceeding 207. a-year); and the farther surplus, if any, to be laid out in such charitable uses as the executors should think proper. The first bequest having been declared void, a question arose whether the bequest of the surplus could be carried into effect. Sir W. Grant, M. R., held, that the testatrix intended the 201. a-year for a minister of her own chapel, and not for the support of a minister generally, as was contended; and therefore that the gift failed, as the chapel was not to have existence; and he said that he had been a good deal embarrassed as to the ultimate bequest. Standing by itself, a bequest of a residue to be employed in such charitable purposes as the executors shall think proper, is a good bequest, supposing it legal to do as the testatrix

(s) 10 Ves. 538.

Attorney General v. Davies, 9 Ves.

(t) Chapman v. Brown, 6 Ves 404; 535.

had directed, and a residue had been left after those purposes were answered, there would have been a good bequest of it; and therefore the question is, whether that ulterior bequest is to fail, because the prior bequest cannot take effect? If it could be reduced to any certainty, how much would have been employed by the executors for the other purposes; the residue ought to be employed under this last direction, viz. for charitable purposes generally. I have considered whether that can be ascertained by a reference to the Master, to see how much would have been sufficient for this chapel; but, upon consideration, it is quite impossible to give any direction that would not be vague and indefinite to a degree almost ridiculous. An inquiry, what they might have employed for building a chapel, without knowing what kind of chapel, the testatrix having given no grounds to ascertain what kind of chapel, no locality. It is utterly impossible to frame any direction that would enable the Master to form any idea upon it. If she had even pointed out any particular place, that might have furnished some ground of inquiry as to what size would be sufficient for the congregation to be expected there; but this is so entirely indefinite, that it is quite uncertain what the residue would have been, and therefore it is void for that uncertainty. She had no view to any residue, but a residue to be constituted by actually building a chapel. She contemplated no residue but with reference to that. It is impossible to ascertain it in the only manner in which she meant it to be ascertained. It is impossible for the court to apply it ;" and it was declared that the devise and bequest for charitable purposes were void, and that the real estate belonged to the heir-at-law, and the personal to the next of kin (u).

In another case, there was a devise of a messuage to one person for life, with remainder to the testator's executors, "in trust, that the same might be appropriated to the use of the master that might be appointed to a school, for the instruction of poor persons belonging to the parish of Week, for so long Hinaman, 2 Jac. & Walk. 277, 278

(u) Chapman v. Brown, 6 Ves. 410, 411. See Attorney General v.

a time as his interest therein should continue." After a direction to the executors out of the testator's personal estate, to put the house into repair, the will contained a subsequent clause, as follows:-" And I do desire and direct that my executors (hereinafter named) shall lay apart, from my personal estate, the sum of 20007. and invest the same in the purchase of stock, in the name of the minister, churchwardens, and overseers of the poor of the parish of Week aforesaid, upon trust, that they do pay and apply the interest, dividends, and produce of so much thereof as they may think necessary, in procuring a master and mistress for instructing poor children in reading, writing, and needlework, and bringing them up in the principles of the established church, and keeping the schoolhouse in decent repair; and upon this further trust, that they do pay, apply, and distribute the residue, if any, of the said interest and produce, after payment of the expenses of the said school, as aforesaid, unto and amongst such poor families and persons, parishioners of and resident in Week aforesaid, at such times and in such proportions as the said minister, churchwardens, and overseers shall think proper." The testator, by a codicil to his will, gave to his executors 1000l., in aid of the sum of 20007. he had directed to be appropriated for the endowment or purposes of a school for children. The devise of the house appeared to have been revoked; but if not, it was held to be clearly void on the face of the will.

An information was filed to obtain the declaration of the court that the bequests of 2000l. by the will, and 10007. by the codicil to charitable purposes, were good and valid, and a reference to approve a plan for their application. It was decided that the bequest for the benefit of the school was so connected with the primary gift, that it fell to the ground; and the amount to be appropriated to the primary object being unascertained, the gift of the residue, which depended on that, was also void. It will be observed, that in this case the testator referred to the schoolhouse, which he had given to the use of the master, and not to any other house that might be procured by the trustees, or given by some other