afterwards taking place to apply part of the fund to an establishment at St. John's College, in Oxford, with which college the Merchant Tailors' Company are connected, and to give the rest to the next of kin, it was, with the consent of the attorney general, established by decree. And the next of kin, after this compromise, having filed a bill against Trinity Hall, for an account, the bill was dismissed, the court holding the next of kin bound by the compromise (w).

The court will not direct an application cy-pres until it has been ascertained whether there will be a surplus, after answering the original purposes of the gift. By charter of incorporation granted by Richard II. in the 19th year of his reign, after reciting that the town of Galway was the key of that part of Ireland, and lay exposed on all sides to enemies and rebels, so that the burgesses of the town, and others dwelling therein, and strangers resorting thereto, could not conduct their necessary business, in going to and from the town; and that the burgesses for the safety of the town, had maintained divers men for defence at their own charges, to their own impoverishment. He, therefore, to enable them the better to resist their enemies, gave them various franchises, in electing officers for their government, as a corporate body; and by other letters-patent of the same date, he, as well for the safety of his people of the town, to be enclosed with a stone wall, as of the parts adjacent, and in aid of the paving of the town, granted to them and their successors, the customs or tolls therein specified in detail, and concluded with a proviso in these words: "Provided always, that the monies arising therefrom, should be faithfully expended on the murage and pavage of the town, and not otherwise." Lord Chancellor Hart said, that the plain import of that language was, that the gift was made not for the exclusive benefit of the corporation, or any portion of the inhabitants, but

(w) Attorney General v. Merchant Tailors' Company, 7 Ves. 223; Andrew v. Trinity Hall, 9 Ves. 525.

Sir W. Grant, M. R. doubted whether it could be done consistently with the decree which had

been made, and whether, an arrangement carrying funds given to a college in Cambridge, which declined the gift, to another college in Oxford, was an execution cy-pres.

for the general benefit of all the king's subjects inhabiting or resorting there for safety or commerce.

An information having been filed to compel the corporation to account for, and apply certain tolls to the public purposes, for which they were granted by the charter, viz. paving the streets and supporting the walls of the town, and any surplus to a charitable use cy-pres. The corporation alleged by their answer, that there were no walls to support, but admitted that the streets were not properly paved, and were in bad condition, and for certain reasons stated by them, they insisted on a right to apply the tolls as their own property. Lord Chancellor Hart was of opinion that the tolls were held in trust by the corporation, but whether it was in the Court of Chancery, or in his majesty, by sign manual, to appoint the application of any excess, he said it would be premature to determine before it should appear by the master's report that there was any excess. A reference was directed to the master to inquire whether the streets were in good repair, and if not, what sum would be required for that purpose; and it was declared, that in case it should appear upon the master's report, that there was any surplus of the money arising from the tolls, beyond the necessary expenditures for the purposes expressed in the charter, the court reserved the consideration for what purposes, and under what authority, such surplus ought to be applied (x).

A void legacy has been directed to be applied to the other charitable purposes mentioned in the will. Thus where a testator gave 200l. to the corporation of Queen Anne's Bounty to augment poor livings, and directed his executors to divide the residue of his personal estate into three parts, and to pay one third to some public charity, either to the corporation of Queen Anne's Bounty, or the society for propagating the gospel: another third to his most necessitous relations by his father's and mother's side: and the remaining third to some public charity. The legacy to the corporation of Queen Anne's Bounty being void, as by the

(x) Attorney General v. Corporation of Galway, 1 Beatty, 298; S. C. 1 Molloy, 95.

R R

rules of that institution it must be laid out in land, the third of the residue which was given to the same charity, or to the society for propagating the gospel, was ordered on the same account to be paid to the latter; and the legacy of the other third, to some public charity, was declared to be good, and the executors were directed to propose a charity to the master (y).

A legacy given to a charitable society, which has been dissolved, will be applied cy-pres. Thus a testator by his will dated in June, 1819, gave a legacy of 500l. to a voluntary society called "The Plymouth and Devonshire asylum for the reception of Female Penitents." At the death of the testator, the asylum was in existence; but within a year afterwards, before his assets could be administered, the society was dissolved; the charitable establishment was completely broken up, and the furniture and other property belonging to it were sold. On a question whether the 500l. was to be applied to a charitable purpose by the crown under the sign manual, or was to be administered by the court cy-pres, Sir J. Leach, M. R. said, the testator here having marked out the particular nature of the charity to which he wished this legacy to be applied, the court will execute his intention cy-pres; and the master must settle a scheme having regard to the testator's will (z).

The doctrine of cy-pres will be applied in favour of any class of persons within the act of toleration (a). An exception was taken to the master's report, approving a scheme for the application of a charity under a will, dated 1699, bequeathing to the congregation of Presbyterians to which the testator belonged, 2007., with directions to lay out the same in land, and yearly raise two several sums out of the

(y) Widmore v. The Governors of Queen Anne's Bounty, Ambl. 637 ; 1 Br. C. C. 13 n. See ante, pp. 51, 52, 171, 255.

(z) Hayter v. Trego, 5 Russ. 113. In Corbyn v. French, 4 Ves. 420, it

was said, that a legacy given for the
purposes of an institution which
had ceased to exist before the time
of payment arrived, would fail.
(a) Ante, pp. 101-105.

profits thereof, for placing out and putting apprentices two poor boys, of such as were members of the said congregation, and that lived in the parish of St. Martin in New Sarum. The fund being considerably more than adequate to the object specified by the testator, the master rejected a proposal for extending that object to other parishes, and for the foundation of a school, approving a plan for extending the charity to children of persons in the same parish of whatsoever religion.

Lord Eldon said, "the description of the objects of this charity, 'boys,' of such as are members of this congregation, must be taken to mean sons of such persons. This testator has strongly marked, that he did not place his confidence in the management of this trust in any persons but Presbyterians. He states himself to belong to them; he mentions the gentleman who was Presbyter; he intrusts the duty to the members of the congregation; and his primary view undoubtedly was to take such individuals, being members of that congregation, as lived in that parish: but I am satisfied, that as between the two objects of residence in that parish, and being sons of members of the congregation, he intended to give the benefit to the latter.

"This is a body known to and tolerated by the law; and it is the duty of the court, and of the crown, where the distribution is in the crown by sign manual, to distribute an unexpected surplus cy-pres the object to which the fund was originally given; and if there are no legal objections, or objections arising out of considerations of policy, the surplus must be applied, as near as can be, to that object which the testator meant to prefer. It would be very inconsistent with his intention to hold, that it might be applied in placing out, as objects of his bounty, children of persons of different religious persuasions; the Roman Catholic, the Jewish, or even the church of England; his object being children of persons professing the same religious worship that he professed.

"It has happened, that the profits of the land purchased with the fund which he destined to this purpose, amount to much more than sufficient to place out two boys. As the

property is not to go to the heir (b), but is to go as near as can be to the first object, sons of members of this congregation within this particular parish; if such boys cannot be found in that parish, his next object, applying the doctrine of cy-pres, is sons of members of that congregation, whether living in that parish or not; and if both those objects shall not be sufficient to exhaust the whole fund, the question then will be, which member of the description is to be preferred that which speaks of boys in that parish, or that which points out sons of members of that congregation; recollecting, that he describes it as a congregation of Presbyterians; and if, according to the policy of the law as it has been acted upon, charitable institutions will be enforced in favour of persons of this description, I cannot see why the principle is not to be followed throughout in the application of the cy-pres doctrine.

"The consequence is, that if boys, sons of members of this congregation, cannot be found, living in this parish, or not, the application must be for boys answering that material object in the view of this testator, viz. sons of Presbyterians. The specification of this parish denotes a local preference. It will therefore be more proper to take boys living in the city of Sarum; but I see nothing to confine it. If the fund should prove so considerable that the court cannot abide by the description, taken altogether, that will not justify going to the greatest distance in the first instance; but there is nothing confining the application, if necessary to the execution of the object. I think, also, that the court would not disapprove, as an execution cy-pres, a provision for putting out apprentices, girls, who are the children of members of this congregation, rather than go out of it, if boys cannot be found answering both descriptions, either in that parish or in any other. But after the application to daughters of members of this congregation, before you can go to building a school, and other purposes in the scheme, you must go to boys, sons of Presbyterians out of Sarum."

(b) Attorney General v. Tonna, 2 p. 561; ex parte Jortin, 7 Ves Ves. jun. 1; 4 Br. C. C. 103; ante, 340; post, 615.