those terms, which were reasonable at the time, was held not to be affected by a subsequent alteration of circum

stances.

By deed, dated in 1703, certain estates were conveyed to trustees in fee, upon trust to employ and dispose of the rents towards the purchasing a convenient place for a school, and for erecting the necessary buildings; and, after the completion of the school, and other necessary buildings, the rents were to be applied in payment of certain allowances, pensions, and salaries for the support of the school. Governors of the school, and of its revenues, were appointed, with the necessary powers. In 1710, the trustees, in consideration of a fine of 300l., demised part of the property for three lives, at a yearly rent of 100l., and covenanted to renew the lease, on the death of any life, upon the payment of a fine of 25l. for every new life. In 1782, the lease was renewed for three lives. In 1828, an information was filed, alleging, that the two leases had been made in violation of the trusts of the charity; and that the school and charitable establishments must remain entirely useless, if the leases were allowed to stand, and be perpetually renewed; and praying that the two leases might be decreed to be void, for an account of rents, for the appointment of new governors, and that the lands might be let for proper terms of years, at a full and fair value. The information was dismissed by the lord chancellor of Ireland, and upon appeal to the House of Lords, that decree was affirmed. Lord Brougham thought that the original lease was not granted at an undervalue; and with respect to the duration of the term, he said that he was not sure it is law founded upon either principle, or statute, or on authority to lay down the proposition, that all leases such as this, that all perpetuities such as this, even that all alienations, if it can be said that the lease in question amounts to an alienation, are, therefore, as such, void or voidable. There is no warrant of principle for holding that; each case must depend upon its peculiar circumstances. His lordship conceived a case, where even an alienation might be fit; not only justifiable, not only harmless, as

regards the breach of trust by the trustees, but might be a fit course for them to adopt. And he put a case where trustees would not do their duty to the charity, if they did not alienate part of the land, as in the instance of an extravagant price, much exceeding the real value, being offered for a small piece of land, or an outlying estate, on account of its peculiar situation; the question, in all these cases, being, whether or not there has been a provident or improvident management of the charitable fund. It appeared to have been the practice in Ireland to grant leases upon lives with covenants for perpetual renewal, and his lordship was of opinion, that regard being had to the circumstances of the times, and to the usual practice of landlords in dealing with large estates in that country at the time the lease was granted, that it was not so improvident, even in the case of charity property, as to lead to the conclusion that an abuse had taken place (g).

The court refused to set aside a lease granted for ninetynine years, determinable on three lives, at a small rent, and on payment of a fine, where it appeared that the corporation, who were the trustees of the charity, had been always in the habit of letting their estates according to the same mode, which was also supported by the custom of the country in which the estates were situate; and where the evidence did not bear out the charge of undervalue. In this case, Sir Wm. Grant, M. R., said, "The leases, which it is the object of this information to set aside, are impeached on two grounds; first, as being of improper length; secondly, as having been made for an inadequate consideration.

"First, they are leases for three lives; or, which comes to the same thing, for ninety-nine years, determinable on lives; and this, it is said, is of itself sufficient to induce the court to set them aside. But, to set them aside, it is necessary to assume, that the corporation has been guilty of a breach of trust in making, and that the lessee has made himself accessary to that breach of trust, in accepting, such leases. Now,

(g) Attorney General v. Hungerford, 2 Clark & Finn. 357.

though the expediency of letting charity estates in this manner may be more or less questionable, according to the nature of the charity, and the circumstances and situation of the estate, I am not aware of any principle, or authority, on which it can be held, that such a lease is, on the very face of it, an abuse of trust. The legislature has, both in enabling and disabling statutes (h), considered leases for three lives as on a footing with leases for twenty-one years absolute. So have many founders of charities, who prohibited the letting on leases for more than three lives or twenty-one years. It would be a strong thing to say, that, in such a case, a lease for three lives would be void. Supposing, however, that where charity estates had usually been let for twenty-one years, it would be considered as improper to substitute a letting for lives, it does not follow that we can impute abuse to a mere adherence to the ancient and uniform mode of letting, especially when it is a mode usual in the district in which the estates are situated. In laying down prospective rules for the regulation of a charity, it may be very fit to consider which mode is best calculated to answer the particular purposes of such charity. In some cases it may be expedient to take fines, in others to let at the best annual rent (i). In order to set aside such a lease already existing, it is not enough to say, that the mode of letting is not the best that might be prescribed, because on such a point there may be a great difference of opinion among the most experienced; but you must show that the mode is so positively bad, that no persons meaning fairly to

(h) 32 Hen. VIII. c. 28; 1 Eliz. c. 19; 13 Eliz. c. 10; ante, p. 680.

(1) Where the leases of estates belonging to a charity had expired, Lord Hardwicke said, as to letting the estates for the future, one consideration is, whether it should be let for the improved rent, or fines directed to be taken: it was left to the master to inquire, whether letting on improved rent, or leasing upon fines, would be for the benefit

of the charity, since a great deal depended upon the custom of the country. The leases were directed to be to the best bidder; and whether upon fines, or the improved rack rent, proper covenants were to be inserted, for the tenants to keep the houses in repair, and to pay all the charges of such repairs. Attorney General v. Price, (Berkhampstead School) 3 Atk. 108.

discharge their trust would have resorted to it. This may be said of a lease for a long term of years absolute, at a stationary rent; because no man of a reasonable degree of providence would so let his own estate. But But many landowners do still let their estates upon leases for lives; and formerly, the general usage in Devonshire (where the estate in question was situated) was to let in that manner. As to the charge in the bill, that proper covenants have not been inserted in the lease, I see no evidence in support of it. The assertion, that there is no covenant to repair, turns out to be a mistake; no witness says, that there is any covenant wanting, that is usually inserted in leases for lives."

As to the second point, that the estates had been let for an insufficient consideration, his honour admitted that leases of charity estates may be set aside on the mere ground of undervalue, but it must be satisfactorily proved, and considerable in amount. It is not enough to show, that a little more might have been got for the estate than was actually reserved. Still less is it sufficient to infer the underletting from the value of the property at some subsequent period, particularly where the lessors have taken the precaution of having the lands surveyed and valued by an experienced surveyor, upon whose estimate the fine was set. In this case, witnesses had made an estimate in the year 1816, of the value of the estate in 1801, according to which much larger fines ought to have been paid.

But the court would not allow the evidence as to value of witnesses stating opinions formed upon a loose recollection of circumstances at a distant period, to be put in competition with that of surveyors actually employed at the time of letting, for the purpose of ascertaining what fine ought to be paid on the renewal, who could have no motive for undervaluing the land, and whose skill or integrity was not in any way impeached. The information was therefore dismissed without costs (j).

The Court of Chancery refused to grant an injunction to

(j) Attorney General v. Cross, 3 Mer. 524, 542.

restrain the governors of the Foundling Hospital, which is established by charter and act of parliament, from proceeding with contracts for letting the fields around the hospital on building leases, as it did not appear that they were violating their trust, and it seemed probable that the intended buildings would be beneficial to the charity (k).

2. Of leases which have been set aside.] It is very difficult to lay down any abstract proposition as to the propriety or impropriety of the mode of granting leases of the estates of charities, or the duration of the term, but each case must depend in a great measure upon the particular circumstances, bearing in mind that the benefit of the charity should be the primary object regarded by the trustees. It is said, that trustees of a charity, under a general power of leasing, may, both in law and equity, either take fines, or reserve rents, as is most beneficial to the charity (1). Trustees of charity estates having the absolute legal estate, may grant leases for any number of years; but if they are unreasonably long, without any circumstances showing that they were made in the fair management of the estate, and for the benefit of the charity, they will be set aside by the Court of Chancery, as a breach of trust. A mere husbandry lease for a term of ninetynine years, upon terms adapted to a lease for twenty-one years, and at rents not improvable nor capable of increase during the whole of the former term (m), and a building lease for the term of 999, upon terms adapted to a lease for ninety-nine years, have been considered breaches of trust, and accordingly decreed to be delivered up (n). Covenants for perpetual renewal of leases of charity estates are void (o).

From the earliest times, leases granted by the trustees of a charity at an undervalue, have been rescinded, or the lessee

(k) Attorney General v. Governors of Foundling Hospital, 2 Ves. 42. (1) Attorney General v. Corporation of Stamford, 2 Swanst. 592.

(m) Attorney General v. Owen, 10 Ves. 555; Attorney General v. Lord

Hotham, Turn. & Russ. 209.

(n) Attorney General v. Green, 6 Ves. 452; Attorney General v. Griffith, 13 Ves. 565.

(0) Attorney General v. Brooke, 18 Ves. 319; ante, p. 690.