out naming any specific object, have been held not to create charitable uses. Thus, where a testatrix, after giving several legacies to her next of kin and others, some of which she directed to be paid out of the produce of her real estate directed to be sold, bequeathed all her personal estate to the Bishop of Durham, his executors, &c., upon trust, to pay her debts and legacies, &c., " and to dispose of the ultimate residue to such objects of benevolence and liberality as the Bishop of Durham, in his own discretion, shall most approve of;" and she appointed the bishop her sole executor. It being clear, that liberality and benevolence can find numberless objects not included in the statute 43 Elizabeth, c. 4, in the largest construction of it. As the trusts might be completely executed without bestowing any part of the residue upon purposes strictly charitable, it was held, that the residue could not be said to be given to charitable purposes; and as the trust was too indefinite to authorise an application to any other purpose, it followed, that the residue remained undisposed of, and to be distributed amongst the next of kin of the testatrix (m).

And again, where a testator, after giving pecuniary legacies, and one to a charitable institution, gave all the residue of his estate to his executors, upon special trust and confidence, nevertheless, to apply and dispose of the same in or towards such charitable or public uses or purposes, person or persons, or otherwise, as he might by any codicil or codicils to his will, or by memorandums in his hand writing, direct or appoint, and as the laws of the land would admit of; and in default of such directions and appointments, then the whole residue, or so much as was not appointed, was to be held upon trust" to pay or apply the same in or towards such charitable or public purposes as the laws of the land would admit of, or to any person or persons, and in such shares and proportions, manner and form, as his executors or the survivor of them, &c., should in their or his discretion think fit, or as they should think would have been agreeable to him, the testator, if living, and as the laws of the land did (m) Morice v. Bishop of Durham, 9 Ves. 399; S. C. 10 Ves. 521.

not prohibit, but admit of;" the testator never having by any codicil or memorandum specified any purpose to which the residue was to be applied, upon a suit by the next of kin, claiming the residue as undisposed of, (the Attorney General insisting that it must be applied to charities, under the direction of the court,) Sir J. Leach, V. C., said, "the testator has not fixed upon any part of this property a trust for a charitable use, and I cannot, therefore, devote any part of it to charity; he has given it to the trustees expressly upon trust, and they, therefore, cannot hold it for their own benefit; the necessary consequence is, that the purposes of the trust, being so general and undefined that they cannot be executed by the Court of Chancery, must fail altogether, and the next of kin become entitled to the property" (n).

So, where a testator, after the decease of his wife, gave lands to trustees and their heirs upon trust to pay certain legacies, with a power to sell or mortgage, and proceeded thus― "the overplus or reversion of the said messuage, &c., and premises, after my said debts and legacies are so discharged, to be applied by the said trustees and the officiating ministers of the congregation or assembly of the people called Methodists, that now usually, or that shall for the time being, assemble at Longford, in Foleshill aforesaid, and as they shall from time to time think fit to apply the same. To which purpose I will and desire, that when any two or more of my said trustees shall die, the survivors or survivor shall from time to time nominate or appoint others to fill up the number of the said trustees, as herein nominated :" Lord Ellenborough, C. J., said, that it was nothing like a devise to charitable uses; for the trustees might apply the estate to any use they thought fit; the will not aiming to confine them to apply it to charitable uses; although it might be supposed that the testator meant them to apply it to superstitious and fanatical uses, yet it was left to their caprice, and unless the court could say that it was a devise to charitable uses, it was not within the statute 9 Geo. II. c. 36 (o).

(n) Vezey v. Jamson, 1 Sim. & Stu. 69. See ante, p. 59.

(0) Doe d. Toone v. Copestake, 6 East, 328; S. C. 2 Smith, 495.

Benevolence is distinguishable from charity, for although many charitable institutions are very properly called benevolent, it is impossible to say that every object of a man's benevolence is also an object of charity. Therefore where a will authorises an application to other than strictly charitable purposes, which alone the Court of Chancery has authority to deal with, the trust being too indefinite, cannot be executed by the court.

A bequest of the residue of personal estate, subject to the expenses of executing the will, to three persons whom the testator appointed executors of his will, and to their executors and administrators, " in trust to be by them applied and disposed of, for and to such benevolent purposes, as they in their integrity and discretion may unanimously agree on,' was held not to amount to a charitable use (p).

In order to create a charitable use, the general principle is, that the trust must be of such a tangible nature that the court can deal with it; when it is mixed up with general moral duty, it is not the subject of the jurisdiction of a court of justice. Private charity does not differ from benevolence, and is in its nature indefinite; assisting individuals in distress is private charity, which can neither be controlled nor carried into execution by the crown or the court (q). Therefore, where a testator, after bequeathing to A. & B. legacies of stock unequal in amount, and giving several legacies to public charities, requested the said A. & B. to be his executors, and gave to them, as such, 100 guineas each; and then ordered his books, jewels, plate and household furniture to be sold; and after desiring mourning to be provided for his servants, and five guineas each to be given to several persons named in the will and to his two executors, for a ring as a token of remembrance, and concluded his will in the following manner-"In case there is any money remaining, I should wish it to be given in private charity;" it was held, that there was no object sufficiently definite to give the crown jurisdiction, or to enable the court to execute the trust, there being no case in which private charity has been made the (p) James v. Allen, 3 Mer. 17. (q) 1 Turn. & Russ. 273.

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subject of disposal by the crown, or been acted on by the Court of Chancery; the charities recognized by that court being public in their nature, and such as the court can see executed (r).

It appears that about the middle of the seventeenth century, though originating probably a good deal earlier, a practice prevailed in the city of London of making the chartered companies keep certain stocks of corn in appointed granaries, that the London market might be the better supplied; and that in times of scarcity, precepts were issued, enjoining those companies, under pecuniary penalties, to provide such supplies, and sell them at a price fixed by the mayor and common council. An attempt was made to establish as a charity, a gift of a specific sum, out of the rents of an estate, to one of the chartered companies in the city of London, "for increase of their stock of corn for the service of the market in London ;" on the ground, that the increase of the corn brought to market tended to keep down the price, and so to benefit the poor; but the court held-first, that no such effect could be produced on the price, unless a line were drawn, and it were shewn how much the company would have brought to the market but for the gift, and it were ascertained that the gift was so much added to that quantity, a quantity of necessity not only unknown, but which never could be known, inasmuch as there were no data for determining it; secondly, that though the gift were admitted to have a tendency, or even the effect of lowering the price, it was no charity in the contemplation of the Court of Chancery; and thirdly, that there was no authority for holding a charitable tendency to be a charitable use; in other words, that a gift to a person for his own benefit, whereby consequential charity might arise, is not a charitable use (s).

Where a testator directed that the senior fellow of a college, to which the estate was devised, should live hospitably in the house, entertain the poor, give them cordials, &c. when

(r) Ommanney v. Butcher, Turn. & Russ. 260; see Legge v. Asgill, Id. 265 n., ante, p. 59.

(s) Attorney General v. The Haberdashers' Company, 1 Mylne & Keen, 420; S. C. 5 Sim. 478.

needful, and moral books, the gift was not considered charitable, not being for collegiate purposes, nor for the good of the college or the public, but to establish somebody to live at the testator's house, and to make his estate unalienable (t). We have already seen, that annuities given to the minister, clerk, and sexton of a parish, to preach a sermon and to keep the testator's tombstone in repair, were held to be charitable uses (u); but a gift merely for erecting a monument to the testator's memory, has been held not to be a charitable use.

Thus, where a testator, having devised real estate upon trust to sell, and out of the produce to apply “20007. in erecting a monument to perpetuate the testator's memory in the parish church of St. John, Southwark; 100l. to Dr. Johnson, on condition of his writing an epitaph to be inscribed on his said monument; and the sum of 20 guineas to the rector of the parish of St. John, on condition of his consenting to the placing up of the monument," which the testator directed to be set about immediately after his decease, and to be completely finished as soon as possible, not to exceed one year after his decease; Sir T. Plumer, M. R., held, that the gift was not a charitable use within the meaning of the statute, and said, that charitable uses are when the donor appropriates a gift, either to charity or to some public purpose, such as the repair of bridges, ports and havens, &c., not operating in any manner to the benefit of himself. But the statute of mortmain does not bear a resemblance to anything like a sumptuary law; and does not apply to property expended, as in the above devise, by the party on himself, for the gratification of his own vanity, on an object which, instead of having any similitude to charity, was the reverse of it; the builder of the monument was to be paid for his labour only. It stood on the same footing as an expensive funeral; and it had never been argued that the expenses of a funeral could not be defrayed out of real estate. There was nothing

(t) Attorney General v. Whorwood,

(u) Durour v. Motteux, 1-Ves. sen.

1 Ves. sen. 534; see 1 Mylne & 321, ante, p. 72.

Keen, 430.