point of religion, than that the parents should be persons professing the Christian religion, and Protestants (c).

Where a testator directed a free grammar-school to be constituted in the borough of Portsmouth, it was held that the boys, whom the master should be required to educate, should be children of resident inhabitants of that place, or the children of persons who were resident inhabitants there at the time of the birth of such children, in case the parents were dead (d).

4. When the doctrine of cy-pres will not be applied.] If there is a legal purpose expressed, which owing to particular circumstances cannot be executed, the court will not execute the charitable purpose cy-pres, by directing the fund to be applied to another charity. Thus where the testator by his will, after devising his freehold and leasehold estates therein mentioned, and charging the same with the payment of annuities, disposed of his personal estate in these words: "I give and bequeath to my executors 1007. each, for their trouble in executing my will; and all the rest and residue of my personal estate I give and bequeath to them, in trust, to apply the same to build a church at Wheatley, where the chapel now is, in such manner as I shall hereafter direct, or for want of such direction, as my executors shall think best." On an information praying a general account and directions touching the plan and execution of the charitable bequest of the testator, the Bishop of Oxford, as patron and parson of Cuddesden, by his answer, opposed the erection of a new church, unless the surplus of the residue could be applied towards an augmentation of the endowment of the chapelry annexed; the chaplain and chapelwarden answered to the same effect, and proposed repairing the old chapel, and with the surplus augmenting the salary of the chaplain, &c. The next of kin insisted, that a new

(c) Attorney General v. The Dean and Canons of Christ Church, Jac. Rep. 485. See in re Bedford Charity, 2 Swanst. 527-531.

(d) Attorney General v. The Dean and Canons of Christ Church, Jac. 489, 490.

church or chapel must be built, and the surplus, if any, divided among them, and opposed the plan of repairing the chapel and augmenting the salary of the chaplain, &c., insisting that the intention of the testator must be implicitly followed; and in case the bishop did not allow a new chapel, that the bequest would be void, and the money divided. Lord Kenyon, M. R. held,that if the bishop objected he could not interfere nor direct the repairing, &c. The intention of the testator must be implicitly followed, or nothing could be done. It was, however, referred to the master to take an account, and to make a special report as to the plan of erecting a new chapel, and the expenses attending it, and also with respect to the bishop's assent (e).

Although where a charity is so given that there can be no objects of it, the court will direct an application to other purposes; yet if there be a probability that the specified

(e) Attorney General v. The Bishop of Oxford, 1 Br. C. C. 444 n. (q). See 4 Ves. 14; ante, p. 620.

It appears, 4 Ves. 432, that before this cause came on again, the next of kin and the persons entitled to the benefit under the will, the parishioners, acting by the bishop and their wardens, came to an agreement that 3000l., part of the residue of the testator's personal estate, should be applied for the purpose of building a new church, and forming a fund for keeping it in repair, and that 1000l. part thereof, should be applied towards augmenting the minister's salary; and that 40007. being paid for the purposes aforesaid, the residue should belong to the next of kin. This agreement is recited in the decree; and by consent it was ordered that the sum of 4000l. being paid for the purposes aforesaid, the residue be paid to the next of kin. Reg.

lib. A. 1792, fol. 611.

Sir R. P. Arden, M. R. said, in Corbyn v. French, 4 Ves. 432, 433, "This decree is completely decisive, that the object not being capable of taking effect, the fund could not be applied to any other charitable purpose. The court could not have made the decree, unless they thought the residue was not applicable to any other charitable purpose. His honour would not say it could not have been applied for repairing or sustaining the chapel, and he doubted whether Lord Kenyon said so; but beyond that purpose, or after satisfying it, this is decisive that it could be applied to no other purpose; for if it was applicable to any other general charitable purpose, or any other purpose for the benefit of the parish, except of the nature pointed out, that decree could not have been justified."

objects will come into existence, the fund will be retained in court. Thus where a testator bequeathed 1000l. 3 per cents. for the purpose of establishing a bishop in his majesty's dominions in America, and also gave 1000l. for repairing parsonage houses, and ordered, that if any charity to which he had given a legacy should no longer subsist, such legacy should fall into the residue; it was objected, that there being no bishop in America, nor the least likelihood of there ever being one, that the legacy was void, and fell into the residue. But Lord Thurlow ordered the money to remain in court until it should be seen whether any such appointment would take place (ƒ).

In the case of Downing college, already mentioned (g) which was a devise for founding a college requiring the king's license, which was not granted for a considerable time, the devised estates were retained in the hands of the court.

Where an intention appears in a testator's will to give the whole of a fund to a charity, the objects whereof are not sufficient to exhaust the whole, the court will apply the residue as nearly to the testator's designation as it can; but the court will not supply the want of objects without some apparent intention to guide the court, which cannot go so far as to dispose of a fund merely on seeing a general intention in the testator to die testate as to the whole (h).

The doctrine of cy-pres will not be applied in order to support a gift of personal estate to a charity, which fails on account of its being connected with the devise or purchase of real estate, although the gift of the personalty, if standing alone, would have been valid (i).

(f) Attorney General v. Bishop of Chester, 1 Br. C. C. 444; ante, p. 273. See Attorney General v. Oglander, 3 Br. C. C. 166.

(g) Ante, pp. 139, 140. (h) Attorney General v. Painter -Stainers' Company, 2 Cox, 51.

(i) Attorney General v. Goulding,

2 Br. C. C. 428; ante, p. 195; Attorney General v. Whitchurch, 3 Ves. 141; ante, pp. 196-198; Attorney General v. Hinxman, 2 Jac. & Walk. 270; ante, pp. 201-203; Attorney General v. Davies, 9 Ves. 535; ante, pp. 177, 178.

5. Of the settlement of a scheme for the application of charitable funds.] When, in consequence of the altered circumstances of the times since the charitable gift, the increase of the revenues, the ambiguity of the trusts, or other causes, the trusts of the original foundation cannot be strictly pursued, and it becomes necessary to make new regulations respecting the management and application of charitable funds, the usual practice of the Court of Chancery is to refer the matter to a master of that court to settle a scheme or plan for the future regulation of the charity, with liberty for the parties interested to propose such plans as they shall think proper.

It appears, by preceding parts of this work (k), that where a bequest is to trustees for charitable purposes generally, without specifying any particular objects, the fund will be disposed of according to a scheme settled by the master.

A reference to the master to settle a scheme may be made on petition, under the stat. 52 Geo. III. c. 101 (7).

Where a testator showed a clear intention to dispose of the whole dividends of a sum of stock for the benefit of charitable institutions, and specified some of them, but left blanks for the names of others, it was referred to the master to settle a scheme for the application of the dividends which were not appropriated, regard being had to the nature and character of the other gifts in the will (m).

Where the trusts of a deed and will were to found a school for the education of gentlemen's sons in a particular house, built by the founder, and it was provided, that if the school was not established the funds should be applied, at the discretion of the trustees, to some other purpose conducing to the good of the county of Westmoreland, and the parish of Lowther especially; the charity, as to the school, having altogether failed, by the schoolhouse having been built on a part of the founder's family estate of which he

(k) Ante, pp. 270, 536.

Stu. 384. See Baylis v. Attorney

(1) Ex parte Fowlser, 1 Jac. & General, 2 Atk. 239; ante, p. 527; Walk. 70. Wheeler v. Sheer, Mos. 288; ante, (m) Pieschel v. Paris, 2 Sim. & p. 520.

was tenant for life only, it was referred to the master to settle a scheme for the application of the rents and profits of the several premises to some charitable purpose or purposes conducing to the good of the county of Westmoreland, and especially of the parish of Lowther, and for the future trusts and management thereof (n): for the words of the gift amounted to a clear direction that if, for any reason, the testator's intention as to the schoolhouse should fail, the property intended for its endowment should be applied to other charitable purposes, which the court was bound to effectuate.

The court frequently directs a scheme, even where an unlimited discretion as to the distribution of a residue is left to a trustee, and where consequently a scheme can answer no purpose but to show that the whole fund is applied to the proper objects (0).

Where the purposes to which, after providing for the sustentation of the school, the surplus income is to be applied, are partly specified by the founder's rules, and partly left to the discretion of the governors; and it appears that the application of the income of a school is not, in all respects, agreeable to the directions of the founder, the court will direct the future application to be settled by a scheme, having due regard, on the one hand, to the founder's directions, and on the other, to the alteration of circumstances since his time, and which may be such as to render a literal adherence to his rules adverse to their general object and spirit (p).

Where in respect of the increased rents of a charity estate, it is referred to the master to approve a scheme for their future application, and he recommends an augmentation of a salary given by the will of the founder, the master, with respect to the augmentation, is not confined to the provisions in the will of the founder, but may stipulate for an addi

(n) Attorney General v. Earl of Lonsdale, 1 Sim. 110, 111.

(0) Supple v. Lawson, cited by Sir Wm. Grant, M. R., in Waldo v.

Caley, 16 Ves. 211.

(p) Attorney General v. the Earl of Clarendon, 17 Ves. 500.