A bequest by a testator, after legacies to individuals and public charities, of any money remaining to be given by his executors in private charity, was held to fall within the principle of the cases in which there is no object sufficiently definite to give the crown or the court jurisdiction to execute the trust; there being no case in which private charity has been made the subject of disposal by the crown, or been acted upon in the Court of Chancery. The charities recognized by that court are public in their nature, and such as the court could see to the execution of. Private charity is in itself indefinite, and can neither be controlled, nor carried into execution. As a general purpose of charity, the object of the testator could not be carried into execution, as a trust it was not sufficiently specific or definite; the next of kin were therefore held to be entitled (w). Where a testator directed his trustees to pay, apply, and distribute certain funds, "to and for such charitable or other purposes as his said trustees, or the survivor of them, should think fit, without being answerable or accountable to any person or persons whomsoever, for such their disposition thereof." Although it was admitted, that if it could have been collected from the will, that nothing else but charity was meant, the bequest would have been good, and fallen within the cases of Waldo v. Caley (x), and Horde v. Earl of Suffolk (y), in which nothing but charity was pointed at; yet, inasmuch as the testator had expressly drawn a distinction between charitable and other purposes, he must be taken to have meant by that expression purposes which were not charitable. And whether these other purposes were such as would give to the trustees, or to any other persons, a beneficial interest was immaterial, because the testator had made it uncertain what the other purposes were; and the case was the same as if he had said, I give to A or B; and, therefore, (w) Ommanney v. Butcher, 1 Turn. & Russ. 265; ante, p. 85. (x) 16 Ves. 206; ante, p. 655. (y) 2 Mylne & Keen, 59; ante, p. 529. that part of the bequest was void for uncertainty, and fell into the residue (z). There are many cases in which a devise or bequest of what shall remain or be left at the decease of the prior devisee or legatee, has been held to be void for uncertainty (a). A limitation of so much of the estate bequeathed as the legatee, to whom it was given absolutely, should be possessed of at his death, to a corporation, for a charity, upon an information for establishing it, was held void (b). The court will not execute a power given by a testator to the trustees of his will, to continue his charities, or to give any others they should think fit. Thus, a testator, after having given his real estates and the residue of his personal estates to trustees for the purposes therein mentioned, recited in his will that there might be services done by different people, and that divers small sums, charities, and benefactions had been given and paid by him and his three late brothers; and he then authorized and empowered his trustees to pay and satisfy such person and persons for such services when performed, and to continue such charities and benefactions, or bestow any other, as they in their discretion should think fit; provided the same did not exceed in the whole the sum of 1,000l. The court said that it could not establish the charity for uncertainty. The direction was certainly void as to the real estate; and as a legacy out of the personal, it did not appear how long it was to endure. The testator was an annual subscriber as long as he pleased; he meant to recommend only; the words were not mandatory, but to exempt the trustees from being called to an account for doing it (c). A testatrix bequeathed the sum of 100l. to be put out by (2) Ellis v. Selby, V. C. 23rd March, 1835, 4 Law Journ. N. S. 69-72. Affirmed by the Lord Chancellor on appeal, Hilary Term, 1836. (a) Bland v. Bland, 2 Cox, 309; Wynne v. Hawkins, 1 Br. C. C. 179; Sprange v. Bernard, 2 Br. C. C.585; Pushman v. Filliter, 3 Ves. 7; Wil- (b) Attorney General v. Hall, W. Kelynge's Cas. Ch. 13. (c) Coxe v. Basset, 3 Ves. 157, 164. her executors, and the interest to be annually paid by them to the Rev. J. B. of W. and to his successors, so long as he the said J. B. and his successors should teach in the town of W. the gospel of Christ, under the name of orthodoxy. The bill and information were filed by F., the person who succeeded B. as minister of the congregation at W., and by a member of the congregation; the effect of the evidence was that the doctrines preached by the plaintiff F. were the same as those preached by B., and that the congregation was one of dissenting Christians who held the doctrine of the Trinity. It being objected that the gift was too vague to be carried into effect, the court held, that the minister for the time being of the congregation at which B. preached in the lifetime of the testatrix was entitled to the interest of the legacy so long as he preached the same doctrines as had been preached by B. in the lifetime of the testatrix (d). A conditional bequest " to the fellows and demies of Magdalen College, Oxford," upon the happening of a particular event, was held void for uncertainty, in consequence of the language of the condition and the description of the legatees being so loose and obscure, that the court was unable judicially to collect the intention of the testator with respect either to the individuals who were to take, or the time and manner of their taking (e). In order to vacate a deed on the ground of obscurity in its meaning, the obscurity must be so great as to render it impossible to put such a construction upon it as will enable the court to carry it into execution. Where a trust deed provided that a fund should accumulate with the interest arising thereon until the principal sums should amount to the sum of 7. sterling, when it was to be applied to the building of an hospital and to the maintenance of boys, leaving blanks as to the amount of the accumulation, and as to the number of boys, it was held that the deed was void on the ground that it was too uncertain to be carried into execution, although it was admitted that the (d) Attorney General v. Molland, 1 Younge, 562. (e) Attorney General v. Sibthorpe, 2 Russ. & M. 107. gift would have been good if a discretion had been given to the trustees to begin to build as soon as they should have accumulated such a fund as they should think equal to the donor's purpose (f). But if the extent of the fund is ascertained, and power over it given to trustees, and the mode in which it is to be applied and managed is left to their discretion, the gift will be good. As where the residue of an estate was appointed to trustees in aid of the institutions for charitable and benevolent purposes established, or to be established, in the city of Glasgow, or neighbourhood thereof, in such manner and in such proportions of the principal or capital, or of the interest or annual proceeds of the sums to be appropriated, as to the trustees should seem proper; with an express declaration, that the trustees should be the sole judges of the appropriation of the residue for the purposes aforesaid (g). (f) Ewen v. Bannerman, 2 Dow & Clark, 74; S. C. 4 Wils. & Shaw, 346. (g) Hill v. Burns, cited 2 Dow & Clark, 101; S. C. 4 Wils. & Shaw, 359. 672 CHAPTER VI. OF THE ALIENATION OF ESTATES BELONGING TO SECT. I. Of the Alienation of Estates belonging to Municipal Corporations. II. Of the Alienation of Estates belonging to Eleemosynary Corporations. III. Of the Alienation of Estates belonging to Charities. SECTION I. Of the Alienation of Estates belonging to Municipal Corporations. ALL civil corporations, such as the corporations of mayor and commonalty, bailiffs and burgesses of a town, or the corporate companies of trades in cities and towns, and all corporations established by act of parliament, for some specific purpose, unless expressly restrained by the act which established them, or some subsequent act, have an unlimited power of alienation over their respective properties and may alien in fee, or for any less estate in tail or for life, or for terms of years, so as to bind their successors, as fully as any individual may do with respect to property of which he has the complete ownership (a). The power of alienation is such a necessary incident to a body corporate, that a qualification in the charter restraining them from aliening except in a particular form, is not binding (b). The recent act (c), for the regulation of municipal corporations, has considerably restrained their powers of alienation. (a) Smith v. Barrett, 1 Sid. 162; Co. Litt. 44 a. (b) Sutton's Hospital, 10 Rep. 1, 30 b. See The Bankers' Case, Skinn. 602. (c) 5 & 6 Will. IV. c. 76, ss. 94 97, 139; post, pp. 677–679. |