the purchase of land for charitable uses. The deed of trust appointed the mayor, burgesses, and commonalty of Bristol to act as trustees; and directed them to lay out the money in the purchase of lands, of which the yearly rent should amount to six score pounds or more. The revenue of this land was to be laid out in the following manner; During the first ten years after the purchase, 100l. per annum were to be given to the city of Bristol, for the maintenance of poor apprentices; and then 24 other cities, specified in the deed, were to receive in succession 1047. each, for one year. At the end of every 34 years the same rotation was to commence, Bristol receiving 1001. for 10 years, and each of the other cities 1047. for one year. No provision was made in the deed for the application of the surplus which would thus remain, when the 100l. or 104. were deducted from the annual rent of 120l. The question at issue was, whether this surplus should be appropriated by the Corporation of Bristol to their own benefit, or should be given to the charity. The case had been brought before the court, by application from the Attorney General, and by complaint from the president and scholars of St. John's College. The other party had demurred, and the demurrer now came to be argued.

Mr. Wetherell argued at great length for the application. He contended that as the corporation were not purchasers for them selves, but for the charity, they could not be entitled to the

§

surplus. In the case of wills, executors are not to appropriate a surplus; but where the rent afterwards exceeds the sum directed by the testator, application is to be made to the court for direction. Trustees of charity are in the same predicament as executors of a will. Beneficial rights are not to arise from fiducial duties. Here were 10l. the application of which was not directed, but it appeared from the tenor of the deed that the donor intended this surplus to guard against casualties. There was

no reason why it should be given to the trustees, although it was not otherwise disposed of. The universal rule of law, which denies to a trustee any beneficial title, except what is specifically stated, decides that the silence of the donor, with regard to this surplus, destroys the claim of the corporation. This deed was prepared by a declaration of trust. It was not a covenant, as had been alleged. The corporation were therefore in the same case as all other trustees. The learned Counsel cited several cases, in which he contended that the decisions of the court destroyed the right of the corporation.

Mr. Taunton followed on the same side. It would be agreed on all hands that this question was to be decided by a reference to the intention of the donor. The deed of trust appointed "that the six score pounds arising from such lands tenements are to be applied by said Mayor, Burgesses, and Commonalty, in manner as afterwards stated, and to no other uses, intents, and purposes.” Here is an

and

express

express disposition of the land to certain uses; and to find what these uses are, we have only to read through the deed. For the first ten years the city of Bristol is to have the exclusive benefit of the revenue. This shows that

charity, without

an

the corporation of that city did not undertake the management of the adequate reward. Lands at that time were selling at 20 years' purchase, and thus the city of Bristol had, in fact, half the value of the land for the trouble of the trustees. The terms of the deed require inspectors or visiters to be appointed. It was argued formerly by Mr. Bell, that this provision was incompatible with a trust. But if it be considered that deeds of trust were not then so common, nor so well understood, as at present, this provision will be satisfactorily accounted for. The learned counsel here adverted to the case of the Attorney-general v. the Corpora tion of Coventry, which had been decided in favour of the charity. In many points the present case was stronger in favour of the charity than the one he had cited. There, there was only a covenant, while here there is a trust. The only point of difference which might be thought to operate against this charity was the unprovided surplus. This appeared the only difference between the two cases that could be unfavourable to the present application. But this was at once done away, by the case of Attorney general v. Arnold. There the whole property particularly appropriated did not amount to one half of the surplus, and yet the whole was

declared to belong to the charity. The principle on which the claim of the corporation was founded appeared to him absurd in the extreme. They say to the charity, "If the rents fall, the charity is to be reduced, because we are not to be losers; but if they increase, the donor intended that we should be the gainers by the rise, not you." Here was no reciprocity-no risk of loss to counterbalance the probability of gain. This amounted almost to a demonstration that the intention of the donor was, that if any surplus remained with the trustees, it could only be left in their hands to defray any incidental expenses that might attend the execution of the trust, and not for their own benefit.

Mr. Fillimore followed on the same side.

Mr. Bell replied for the corpo ration. The gentlemen on the other side had travelled over a wide field of argument, while, in his opinion, the question might be reduced within a very narrow compass. The case rested entirely on what was the intent of the parties in the deed. It is said, that the corporation are deriving great profits from the management of this charity. If that question were entered into, the gentlemen would find themselves egregiously mistaken. He would say a few words as to covenants. Mr. Wetherell had stated, as a broad assertion, that where persons are appointed trustees, they are bound by every law of trust. If he meant that trustees were trustees, he (Mr. Bell) did not dispute it [a laugh.] He would not deny that a trust might be

declared

declared by a covenant. But how would a court of Equity execute it as a trust? Just as a court of Law would execute it as a covenant. If the court can collect from the deed of trust, that the donor intended the covenant to be binding as a trust, this was the whole length it could go. In the case of Coventry which had been quoted, the deed was to be enforced by a covenant. The question was, whether that circumstance prevented the court from looking at the intent of the deed, or did it require the literal fulfilment of it? If it appeared from the intent of this deed, that the donor intended the whole for charitable uses, he would not be bold enough to deny, that a court of Equity might direct the whole to be applied according to the donor's intention. Although when the whole of a property is given to charitable uses, and the revenues increase, that increase must go to the charity; still it does not follow, that because part of a property is so given, all the remainder unprovided for, is to be applied in the same manner. He would now consider the intent of the deed. It is said by the gentlemen on the other side, that in the introductory part of the deed, there is no expression of an intention to benefit the city of Bris tol. The donor certainly meant a benefit to that city, by allowing it to enjoy the revenue of the property for ten years, while the other cities had it only for one year. The trust deed directed the corporation to purchase lands, of which the rents should amount to 120l. or more; and it appeared VOL. LX.

to him, that if they could make this purchase for less than 2,000l. they were entitled to appropriate the balance.

Vice Chancellor.---Certainly not, if they were trustees.

Mr. Bell said, that if he could have succeeded in showing that they were obliged to lay out the whole of the 2,000l., it would have fortified the claim of the corporation; but if he failed in that attempt, the failure would not affect the validity of his other arguments. The deed says, that 100l. are to go to the city of Bristol for ten years, and afterwards 104/. to 24 other cities, in annual succession. Now, Mr. Wetherell contends, that since the donor has given them 1007. for ten years, they have no title, in justice, to the residue. Could any thing be more absurd than for a person making a will to say, he left A. B. his property on condition that he should pay C. D. 50l. per annum, and yet not to intend that all the surplus should go to A. B. Is there a single iota in this deed which says, that if there was a surplus, the corporation should account for it? Is it not evident that the donor either did not contemplate the rise of rent; or if he did, that he intended the city of Bristol to be benefited by it? If a property of limited amount is left to a charity, all the benefit resulting from fluctuation of rents, &c. must go to that charity, and not to the heir at law. Of this nature were the cases adduced on the other side; and it was evident they were not applicable, since in this case all the property had not been left to the charity. If

Y

the

the rent of the land did not amount to 1201. Bristol was bound by the deed to make up the deficiency. Were they to be bound to pay this, and to derive no benefit from the surplus? It would not be in the power of arbitrators to relieve the city of Bristol from the deficiency on all occasions. It is agreed in the deed that the corporation shall make up the rent, unless in cases of accidents and repairs; and here they are subject to the decision of arbitrators, without the power of applying to a court of justice. One of the gentlemen on the other side had said, that the President of St. John's College and the Mayor of Bristol were appointed, in the capacity of visiters, to look after the management of the charity, at their own expense; and hence he infers that the city of Bristol had no claim to the surplus on account of the visitatorial labours of the Mayor, any more than St. John's College had for those of its President. Now it appeared more likely, that since St. John's College was benefitted by the will of the testator, the President was appointed a visiter on that account; on the same principle that the Mayor of Bristol was, on account of the benefit intended to the city of Bristol, appointed a visiter. He submitted to his Honour whether it did not follow, that where the city was to guarantee a certain amount, some benefit was not intended by the testator.

Vice-Chancellor.-The information in this case sets forth that the corporation of Bristol were bound, by the deed of trust, to

lay out 2,000l. in the purchase of land of the annual rent of six score pounds or more; and it is contended, that if they could purchase more with this sum they were bound to do so by the intention of the donor. It is said, that since the purchase, the annual rents have risen from 129. to many thousand pounds; that notwithstanding this great rise the trustees have applied only 1047. to the charity; that they have appropriated this great surplus to themselves; and that this appropriation is a breach of trust, as it does not appear to have been the intent of the donor that the corporation should be benefited by the surplus. On this information the corporation have demurred, on the ground that the question is too important to be decided in this early stage. As this is a question merely respecting the intention of the donor, I do not see what benefit can result from delay, since no other evidence than the deed itself can be adduced. My opinion, therefore, is, that the present is the proper moment of deciding. The case is of great importance; it is new in circumstance, although not in principle. (His Honour then went over all the cases that had been referred to, and precedents, in the course of the arguments, and showed that none of them were applicable in every circumstance to the present question.) If this were a case between A and B, without regard to charity, the corporation would be considered as purchasers of the land; and as such, although bound by their covenant to apply the sums provided for in

the