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Discretion 3. Where a discretion is left to trustees, which would to trustees to apply empower them to apply the whole of the gift either to the whole to charity

charitable or other indefinite purposes, the whole gift is or other

void, as it does not appear that the chief object was indefinite objects. charity, and, on the other hand, the other object is void

for uncertainty. Williams v. Kershaw, 5 L. J. Ch. 84; 5 Cl. & F. 111; Jumes v. Allen, 3 Mer. 17; Morice v. Bishop of Durham, 9 Ves. 399; 10 Ves. 521; Ommaney v. Butcher, T. & R. 260; Vezey v. Jumson, 1 S. & St. 69 ; Kendall v. Granger, 5 B. 300; Thompson v. Thompson, 1 Coll. 398 ; Boyle v. Boyle, I. R. 11 Eq. 433.

It has recently been decided, that the trustees cannot exercise their discretion and appoint the whole to charity. In re Jarman's Estate ; Leuvers v. Clayton, 8 Ch. D. 584.

Whether the result would be the same, where the whole might have been applied by the trustees either to charity or some other definite and ascertained object, seems uncertain. Down v. Worrall, 1 M. & K. 561; a case of very doubtful authority.

But, if the bequest is such, that a portion must be apapplied in plied to charity, the gift is good, although the charitable charity,

trust may be coupled with other trusts, which are void for the Court will ascer- uncertainty.

In such a case, if it cannot be ascertained how much ought to be applied to each object, the gift will be equally divided among the several objects, including those which are void, as to which the gift will fail pro tanto. Doyley V. A.-G., 4 Vin. 485; 7 Ves. 58 n.; Salusbury v. Denton, 3 K. & J. 529; Crafton v. Frith, 20 L. J. Ch. 198; Hoare v. Osborne, L. R. 1 Eq. 585; In re Rigley's Trusts, 36 L. J. Ch. 147; see, too, Re Hall's Charity, 14 B. 115.

If it is possible to estimate how much ought to be given to each object, an inquiry will be directed. Adnam v. Cole, 6 B. 353; Champney v. Davy, 11 Ch. D. 949.

If part

must be

tain the amount.

4. If it is clear that the testator intended to give to Where

there is a charity generally, the bequest will not fail :

general a. by the failure of the testator to appoint the particular charitable objects he intends to benefit, though the bequest may be gift is ap

plied cy to such charitable uses as he shall appoint. Mills v. près. Farmer, 1 Mer. 55; Commissioners of Charitable Donations v. Sullivan, 1 D. & War. 501 ; Gillan v. Gillan, 1 L. R. Ir. 114; Pocock v. A.-G., 3 Ch. D. 342.

b. or by reason of the death, revocation of the appointment, or refusal to act of persons in whom a similar power has been vested. Moggridge v. Thackwell, 7 Ves. 36; 13 Ves. 416; White v. White, 1 B.C. C. 12; A.-G. v. Boultbee, 2 Ves. jun. 380; 3 Ves. 220.

c. or by the failure or non-existence of the particular objects he has pointed out. Loscombe v. Wintringham, 13 B. 87; Hayter v. Trego, 5 Russ. 113; Reeve v. A.-G., 3 Ha. 191.

d. or even by the fact that some of the objects specified are void. Fisk v. A.-G., 4 Eq. 521 ; Dawson v. Small, 18

Eq. 114.

e. or by the fact that the bequest is to be applied to a particular object at a future time beyond the limits of perpetuity. Chamberlayne v. Brockett, 8 Ch. 206. 5. Where there is a general charitable intention, par- Whether

particular ticular gifts to charity will be applied cy près, and will not charitable fall into the residue, though the residue itself may be gifts which

fail given to a charitable object, unless the particular gifts are into the

residue expressly directed to fall into the residue upon failure of which is the charitable objects to which they are given. Lyons v. to charity

also given Adrocate-General of Bengal, 1 App. C. 91. 6. Where a bequest is void as contravening the policy of a Gift con

to statute, it will not be carried out cy près. Thrupp v. policy of a Collett, 26 B. 125 ; Sims v. Quinlan, 16 Ir. Ch. 191 ; 17 statute. ib. 43; Walsh v. Walsh, I. R. 4 Eq. 397.

7. Where the whole of the rents and profits of land are lucrease


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in value of given to charity, but the objects pointed out do not exhaust rents and profits the fund, the Court distributes the surplus cy près. Arnold given to charity.

v. A.-G., Shower P. C. 22; Pieschel v. Paris, 2 S. & St. 384.

Where a sum, which in fact amounts to the whole of rent given to charity, the rents and profits of certain land, is given to charity, the in

this is in effect a dedication to charity of the land itself, crease also passes. and any increase in the rents and profits goes to the same

purposes. Thetford School Cuse, 8 Co. R. 130 b.

Similarly, if the testator has shown an intention to dispose of the whole to charitable purposes, though there may be a residue undisposed of, it will go to the same purposes. A.-G. v. Drapers, 2 B. 508.

And where the whole rents are given in certain proportions among several charitable objects, any increase is apportioned rateably among those objects, subject to the discretion of the Court. A.-G. v. Jesus Coll., 29 B. 163; A.-G v. Marchant, L. R. 3 Eq. 424; Merchant Taylors v. A.-G., 11 Eq. 35; 6 Ch. 513; A.-G. v. Wax Chandlers,

L. R. 6 H. L. 1. When cer- But where rents and profits of land are given to a corments are poration and certain fixed charitable payments are directed, directed

which do not exhaust the whole, and there is no gift of out of the rents for the residue, the residue belongs to the corporation. A.-G. charitable objects, v. Mayor of Bristol, 2 J. & W. 291 ; A.-G. v. Brasenose leaving a surplus,

Coll., 2 Cl. & F. 295; A.-G. v. Trinity College, 24 B. the in

383. crease does

A fortiori, if the surplus is expressly given to the corcharitable poration, though the amount of it be specifically mentioned objects.

by the testator, any increase, after the payments directed have been made, belongs to the corporation. Southmolton v. A.-G., 5 H. L. 1; Mayor of Beverley v. A.-G., 6 H. L. 310; A.-G. v. Dean of Windsor, 8 H. L. 369.

If, among the particular payments directed, some are not charitable, but are to be made to individuals and

tain pay.

not pass

to the

cannot have been intended to abate, there is an additional argument that none of the particular payments were either to abate or to increase, and that the surplus, whatever it might be, was to go to the donees in trust. A.-G. v. Cordwainers, 3 M. & K. 534 ; Mayor of Beverley V. A.-G., 6 H, L. 310.

On the other hand, if the surplus undisposed of is insignificant, and there is a direction, that the particular payments are to abate proportionately in the event of depreciation of the property, the inference arises, that they were in like manner to share proportionally in any increase. Mercers' Co. v. A.-G., 2 Bl. N. S. 165.


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When the bequest is to an existing charitable institu- A gift to a

charitable tion, the bequest is left to be administered as part of the institution funds of that institution. Society for P. G. v. A.-G., tered by

is adminis. 3 Russ. 142; Wellbeloved v. Jones, 1 S. & St. 43.

the institu

tion. But if the bequest is to an existing charitable institution for purposes other than the purposes for which it exists, the Court will administer the bequest by a scheme to be settled in Chambers, ib. And, generally, wherever trustees are interposed by the A gift to

trustees for testator, his object will be carried out by the Court by a charitable scheme; but if no trustees are interposed the charity pdminis.

purposes is is administered under the Sign Manual. Moggridge v. tered by Thackwell, 7 Ves. 36; Raice v. Abp. of Canterbury, 14 Ves. 364 ; Kane v. Cosgrave, I. R. 10 Eq. 211.

If, however, there is a gift to foreign trustees for charit- Gift to able purposes in a foreign country and the trustees dis- trustees for claim, the Court has no power to settle a scheme, and the a foreign

charity. gift fails. A.-G. v. Sturge, 19 B. 597; New v. Bonaker, 4 Eq. 655.

the Court.

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(ases in

And in some cases, where an annual sum has been which the directed to be given to a person for his life to be distri

buted in charity, the Court has refused to interfere with not inter- the discretion of the trustee by settling a scheme. Bennett

v. Ilonywood, Amb. 708 ; Waldo v. Cayley, 16 Ves. 206 ; Horiler v. Earl of Suffolk, 2 M. & K. 59.

of the trustee is

fered with.


c. 36.

Statute of By the so-called statute of Mortmain, 9 Geo. II. c. 36, it 9 Geo. II.' is enacted, that no hereditaments, corporeal or incorporeal,

nor any personal estate to be laid out in the purchase of lands, shall be given for the benefit of any charitable uses whatsoever, except in the manner therein directed; and, in effect, all gifts by will of any lands, tenements, or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements, or hereditaments, or of any stock, money, goods, chattels, or other personal estate, or securities for money, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable uses

whatsoever, are declared to be null and void. Legacy If a charitable legacy is given free of duty, this is in duty.

effect a gift of the duty, which cannot therefore be paid out of impure personalty. Wilkinson v. Barber, 14 Eq.

96. What is A. The decisions are numerous as to what is an interest an interest in land

in land within the statute of Mortmain. within the

1. Money to arise from the sale of land directed by the statute. Money to testator, though the land is devoted to partnership pursale of

poses, is clearly within it. Page v. Leapingwell, 18 Ves. land. 463; British Museum v. White, 2 S. & St. 595; Thornber

v. Wilson, 4 Dr. 350; Incorporated Church Building

arise from

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