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OF CHARITABLE AND SUPERSTITIOUS USES AND TRUSTS.
Sect. I.—Of Uses and Trusts which are Charitable.
II.—Of Uses and Trusts which are not Charitable. III.-Of Superstitious Uses and Trusts.
Of Uses and Trusts which are Charitable.
Poor Relations, p. 63.
Religion, p. 70.
General and Public Purposes, p. 75.
1. General observations on the term charity.] It is principally necessary to consider what gifts come under the denomination of charitable uses, since the powers given by the statute 43 Eliz. c. 4 have fallen into disuse, for the purpose of determining what conveyances, devises and bequests come within the operation of the statute 9 Geo. II. c. 36(n), prohibiting gifts “in trust or for the benefit of any charitable uses whatsoever;" and for deciding when an information in the name of the Attorney General can be sustained in a court of equity, which has an inherent jurisdiction to administer trusts relating to charitable gifts, according to the rules peculiarly applicable to them.
(n) See post. Chap. iii.
Charity, in its widest sense, denotes all the good affections which men ought to bear towards each other (o); in its most restricted and common sense, relief of the poor. But it is not employed in either of those senses in English courts of justice, where its signification is derived chiefly from the statute 43 Eliz. c. 4. Those purposes are considered charitable which are enumerated in that act, or which by analogies are deemed within its spirit and intendment; and to some such purpose every bequest to charity will generally be applied (p). Where a testatrix by her will gave certain legacies, and in a codicil used these words, “ If there is money left unemployed, I desire it may be given in charity;" it was held, that the general residue of her personal estate was well given to charity, although no objects were mentioned (q).
Where there is a gift to charity in general, whether it is to be executed by individuals selected by the testator himself, or by the king as parens patriæ, it is the duty of such trustees on the one band, and of the crown upon the other, to apply the money to charity in the sense which the determinations have affixed to that word in the Court of Chancery; viz., either to such charitable purposes as are expressed in the statute 43 Eliz. c. 4, or to analogous purposes (r).
Public charities are hardly distinguishable from private; the charter of the crown does not make a charity more or less public, but only more permanent than it otherwise would be; but it is the extensiveness which will constitute it a public one. A devise to the poor of a parish is a public charity. So where testators, not having any particular persons in their contemplation, leave funds to trustees who are to have a discretion in selecting the objects; though such persons are private, and each particular object may be said to be private, yet in the extensiveness of the benefit accruing from them, they may very properly be called public charities. A sum to be disposed of by A. B. and his executors at their discretion,
O 1 Epist. Cor. c. xii.
265 n. See Vezey v. Jamson, 1 Sim. (p) 9 Ves. 405; 10 Ves. 541; 2 & Stu. 69 ; post. sect. ii. Vern. 387
(r) Morice v. Bishop of Durham, (9) Legge v. Asgill, Turn & Russ. 10 Ves. 541.
among poor housekeepers, is of this description (s). A bequest of money to put out children apprentices, as the testatrix's brother should think fit, was held to be a public charity within the statute 8 Anne, c. 9, s. 40, which exempts from stamp duty money paid in respect of an apprentice “by or out of any public charity” (t).
The following charitable uses are enumerated in the preamble to the statute 43 Eliz. c. 4; “relief of aged, impotent and poor people—maintenance of sick and maimed soldiers and mariners (u)-schools of learning-free schools and scholars in universities—for repair of bridges, ports, havens, causeways, churches, sea banks and highways-for education and preferment of orphans--for or towards relief, stock or maintenance for houses of correction—for marriages of poor maids-for supportation, aid and help of young tradesmen, handicraftsmen, and persons decayed--for relief or redemption of prisoners or captives--and for aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers, and other taxes."
The subjects of such gifts mentioned in the same statute are lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money and stocks of money, theretofore given or thereafter to be given, limited, appointed or assigned.
It has been said, that although there is no statute in IreJand corresponding with the statute of 43 Eliz. c. 4, yet that act has been adopted in that country for the purpose of ascertaining what are to be considered as charitable uses there (20)
(s) Attorney General v. Pearce, vants in a ship, Duke, 103, (127). 2 Atk. 87 ; S. C. Barn. 208.
(w) 6 Dow. 136; 1 Molloy, 95, (1) Rex v. Clifton upon Dunsmore, 618. By the Irish statute 10 Burr. Settl. C. 697.
Charles I. sess. 3, c. 1, the arch(u) It is said, that soldiers in- bishops and bishops of that kingcluded either voluntary or pressed, dom may be compelled in Chanor an alien who had been in the cery, or by petition to the Coun. English service, but not voluntary cil Board, to perform the trusts victuallers, nor the wives, children, of any lands conveyed to them by or servants of soldiers; and that James I., or by Charles I. and his mariners included all necessary ser- successors, or by any other corpo
Many gifts not intended for the objects mentioned in the statute 43 Elizabeth, c. 4, have been determined to be charitable uses within the equity of that act, and to come under the jurisdiction of the Court of Chancery as such. There seems, however, to be no case in which a bequest has been held charitable where the testator has neither used the word charity to denote his general object, nor specified some particular purpose which the Court has determined to be charitable in its nature (3).
Almost all charities which are to be administered in the Court of Chancery, have one of four objects in view. Ist, relief of the poor in various ways, as by money, provisions, education, medical assistance, &c.; 2nd, the advancement of leaming; 3rd, the advancement of religion; and 4th, the advancement of objects of general public utility.
2. Gifts to the poor.] Charity has been defined to be a gift to a general public use, which extends to the poor as well as to the rich (y). Poverty is the principal and essential circumstance for bringing a gift within the words, “ for relief of aged, impotent, and poor people,” in the statute 43 Elizabeth, c. 4; for a gift to the aged of such a parish, or to the impotent of such a parish, without expressing their poverty, is not within the act, because they may be rich. But a gift to the poor, without expressing age or impotency, is good enough; for poverty alone is sufficient subject for charity to work
rations or persons, for the following or for the erection, building, mainpurposes: "For the erection, main- tenance or repair of any bridges, tenance or support, of any college, causeways, cashes, paces, and highschool, lecture in divinity, or in any ways within that realm; or for any the liberal arts and sciences; or other like lawful and charitable use for the relief or maintenance of any and uses, warranted by the laws of manner of poor, succourless, dis- that realm, then established and in tressed or impotent persons; or for force ;” which shall be taken and the building, re-edifying, or main- construed to be good and effectual taining in repair, any church, col- in the law. lege, school or hospital ; or for the (a) 9 Ves. 504; 10 Ves. 546. maintenance of any minister and (y) Jones v. Williams, Ambl. 651. preacher of the holy word of God;
upon. So a gift to all the aged and impotent of such a parish, not assessed in the subsidy, is charitable ; for those not so assessed are poor within the intent of the statute. So a gift of money to make a stock to bind apprentices, the children of such men as are not in the subsidy of goods, and relieve bastards, is a charitable use; because they are like orphans, having (by intendment of law) no parents to relieve them (2).
The following bequests have been decided to be charitable : “for the relief of the poor of a parish” (a); “to the poor maintained in an hospital" (b); “to the master and governors of an hospital” (c); “to the widows and orphans of the parish of Lindfield, Sussex” (which was construed the poor widows and orphans) (d); “to the widows and children of seamen belonging to the town of Liverpool" (e). So a bequest to a parish generally, without directing any particular use, was decreed to the poor of the parish (f). But where the gift is to the poor indefinitely, which in common construction extends to all the poor in England, the king will have the disposal of the fund (g).
Gifts to build houses for the poor, with four acres of land to a cottage ; to make conduits to almshouses ; to maintain a common laundress, or a chaplain, for the poor of such houses; to build a house to which the poor may resort to receive their alms, &c.; to provide them weapons for the defence of their houses, but not to wear abroad for ostentation; and to increase the diet of almsmen upon festival days; are all mentioned by Sir F. Moore as charitable uses (h).
(z) Duke, 132 (125); Com. Dig. (f) West v. Knight, 1 Ch. Cas. Uses (n).
134 ; Champion v. Smith, Duke, 81 (a) Woodford v. Parkhurst, Duke, (622). By the civil law, under such a 70 (378).
devise, the poor of the hospital of the (6) Corporation of Reading v. parish where the testator lived, would Lane, Duke, 81, 111 (361).
have been entitled ; and if there was (c) Mayor of London's Case, Duke, no hospital, then the poor of such 83, 111 (380).
parish generally. 2 Domat, 169. (d) Attorney General v. Comber, (9) Attorney General v. Peacock, 2 Sim. & Stu. 93.
Finch, 245; Attorney General v. (e) Powell v. Attorney General, 3 Matthews, 2 Lev. 167. Mer. 48.
(h) Duke, 132, 133 (126).