main, there it fhould belong to the heir at law or next of kin; but where it was in itself a charity; but the mode in which it was to be difpofed of was fuch, that by the law of England it could not take effect, as in the cafe before him, it promoting a religion contrary to the established one, there the crown, by fignmanual directed to the Attorney-General, might give orders in what charitable manner it fhould be difpofed. De Cofta v. De Pas, 1754, Amb. 228. Note-The reporter adds, that he was afterwards informed, that 1000/. of the money was directed by fign manual to be difpofed of to the Foundling Hofpital

2. At the death of J. B. teftatrix gave her nine houfes in V. eight to eight poor people that had paid most and longest to the poor's books in St. Mary Overbury's parifh, as the books should prove, and the corner houfe (the ninth) to repair them; and the gave the dividends of 800l. 4 per cents. at the death of 7. B. to the eight houses for ever (a) to each houfe the 41. every year for ever, as the bank paid the dividend. The devife of the houfes being clearly void under the ftatute of mortmain, it was infifted, that the gift of the 800/. ftock was attached to it, and fo void alfo. Mr. J. Buller-" The queftion is, Whether the gift of "the 800/. can be fupported? For this purpose it is argued not "to be within the ftatute. With refpect to the houses, the gift "of them is void; then, if the gift of the 800 l. cannot be ap"plied according to her difpofition, another question arifes, "Whether the court is to apply it to fome other matter ejufdem "generis. The court has certainly thought it could vary the ufe; "but the rule may be drawn from the cafes, that wherever the "court had directed the fum given to be applied to a different "ufe, there has been proper ground for the court to fay, that "the ufe to which it has been applied is confiftent with the use "declared in the will; but there have been fubfequent cafes, " which have varied the rule: where, according to the intention "of the teftatrix, the applying the fund otherwise than to the "perfons inhabiting the houfes would be contrary to that inten "tion, the inhabitants of the houses being the principal objects " of bounty, if they cannot be fupported, it is not to be given "to the poor in general." Bill to eftablish the charity difmiffed. Attorney-General and others v. Goulding, 2 Bro. C. C. 428. See S. P. in Durour v. Motteux, 1 Vez. 322. See alfo Attorney-General v, Hutchinfon, 1 Bro. C. C. 444, n.

3. Devife of four tenements in the parish of A. to the churchwardens and veftrymen of the faid parith, " in truft for such poor "men of that parifh as they fhould think fit:" if any of the defcendants of . fhould apply, teftator defired they might be preferred. "And as I intend these four houses to be in the man"ner and custom of alms-houses for men and their wives, I give "and bequeath to the churchwardens and veftrymen of A. 2000/ "4 per cents. to difpofe of the intereft in the following manner, "viz. to give to each of the four perfons that they allow or per"mit to inhabit the four houses 13 1. per ann. or 5 s. a-week, to "be paid weekly, monthly, or at their difcretion, that is for a VOL. II.

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man and his wife: if one of them die, the fingle one to have
3 5.
6 d. a week." The question was, Whether the gift of the
2000l. was fo attached to the gift of the alms-houses, which was
void under the ftatute of mortmain, that it muft fail with it, or
whether it might be carried into effect cy-pres? With regard to
the principles upon which the court of Chancery had administered
charities, where the fame could not be carried literally into effect,
Sir R. P. Arden, at the Rolls, referred and adhered to those
which he had laid down in the Attorney-General v. Boultbee (ftated
fec. 3. pl. 2. inf.). The doctrine of cy-pres, however wildly and.
extravagantly it had been acted upon in former cafes, was by late
decifions, particularly fince the ftatute of mortmain, administered
in this way. The court would not adminifter a charity in a
different way from that pointed out, unless they faw that, though
it would not be literally executed, another mode might be adopted
by which it might be carried into effect, without infringing on
the rules of law; and his Honor referred to the decifions to this
effect on the mortmain a&t (a). He then continued thus: "It re-
"mains to apply thefe principles to fee, whether there is any in-
"tention to give this fund to the general purpose of providing
"for poor men and women, independent of the alms-houfes, or
"whether an endowment only is propofed by the appropriation
"of part of the intereft to that. In that view it must be admitted,
"that it muft fail. The Attorney General v. Goulding, (pl. 2. fup.)
" is almoft precifely in point. I believe I may have intimated a doubt
<< upon that cafe. I thought it a more rigid conftruction of the rules of the
"court upon charitable bequests, than in prior cafes had been adopted.
"Upon confideration I agree that it is right: but I do not agree
"with what Mr. J. Buller is ftated to have faid, that the rule of
"the court to execute the charitable purpose in another way had
"been varied. I perfectly agree with the rule laid down; but I
"deny that it has been varied; nor was it neceffary to fupport
"that decifion that it fhould be varied; for the ground of it, ap-
❝pearing in the report, is, that applying the charity to any other
"object would be contrary to the intention. The decision of
"the cafe does not prove any variation of the rule laid down.
"I am very defirous that the principles upon which I decide this
"cafe, and concur in the Attorney-General v. Goulding, should be
"known. It is faid, an intention to give this provifion to any
66 poor men and women may be collected. If I could collect
"that intention, I would execute it; but I cannot the intention
"was to make an endowment of alms-houses; there was no
"general intention beyond that; and therefore the bequest, fo
"far as it concerns thofe alms-houses, muft fail with the object
"to which it was attached." Attorney-General v. Whitchurch,
3 Vez. jun. 141.

2. Where it afterwards becomes unlawful.

1. Teftator, before the mortmain act, devised his real and perfonal eftate, (with certain exceptions,) for thefe ufes: to pay every one

of

of fix scholars 10l. a-year. He then devifed and bequeathed the fame, (not faying to whom,) to purchase advowfons, to be prefented to by Jefus College; and he then appointed trustees. The college having purchased as many advowfons as by the mortmain act, which was paffed afterwards, they could, filed an information against the heirs at law for a conveyance, (pursuant to a prior decree in 1717 for that purpose,) and to have the rents laid out for the benefit of the college, as the court fhould think fit. It was argued for the heirs, that they had a title to the furplus rents; and this was refted particularly upon what Lord Coke says, as to the heir of the founder taking on the failure of a monaftery. The decree was, that the adult heirs fhould convey to fuch perfons as the then trustee should appoint; the minor heirs to join, having a day given them to fhew caufe; and that the college fhould lay a plan before the Mafter. So that, adds the reporter, the decree was complete against the heir at law. Attorney-General v. Hoare, 1783, cited 1 Bro. C. C. 495. But, in a fubfequent cafe,

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2. Teftator, in 1714, gave his manor of M. and all other his lands, &c. in Yorkshire, to trustees, to pay thereout yearly 600l. for the maintenance of two medical perfons, to be chofen as travelling fellows; and the yearly overplus of the rents to be paid. for ever to Univerfity College, Oxon, for the buying of perpetual advowsons for the members of the faid college. And he defired that his Yorkshire eftate fhould be conveyed and fettled on the mafter and fellows of Univerfity College for ever, for the performance of the trufts aforefaid (which was afterwards done). The eftate after fome years producing a furplus, after payment of the travelling phyficians, the college purchafed advowfons till they poffeffed as many as the ftatute of mortmain would allow, i. e. a number equal to that of the moiety of the fellows; and then (under the idea that they could not purchase more) they laid out part of the furplus in increafing the value of the former livings, and the income of the headship of the college. On an informa tion filed against the heir and the college, praying a proper application of the furplus rents, the heir claimed them as undifpofed of; and the college fubmitted that, as the devife was before the ftatute of mortmain, they were not affected by that ftatute; but that if they were, ftill the furplus fhould be applied to other ufes for the benefit of the college, as being the application nearest to the teftator's intent. Lord Chancellor" The point in question "is with refpect to the charity itself. The court has had a plan "of arrangement laid before it; fuppofing the whole object of the "charity to fail, and yet that the eftate is by the will appropriated "to charitable ufes, ftill the will is a clear exclufion of the heir "at law. He is to claim a trust, not refulting from the will, but "the act of the legislature. If there be any cafe in which the heir "is difinherited, it must be that where the devife was good at "first. Confidering the words of the laft claufe of the act, it is difficult to make it out that there is fuch a limitation as is con"tended for; but it has been fo conftantly understood the other "way, that I do not think myself warranted to hold a different " opinion.

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"opinion. I do not fee why fome arrangements should not be "made by way of exchange of advowfons. But it is not necef "fary to declare that now. If that fhould fail, the question be "tween the general trustees and the heir at law will then arise. "I confefs it will be difficult to obtain it for the heir at law, and "perhaps as difficult for the general trustees. If all these should "fail, it may be a question, Whether it is to become fiscal, or "will go to the heir at law, as refulting to the founder." Attor ney-General v. Green, 2 Bro. C. C. 492. See Attorney-General Bishop of Oxford, stated fec. 2. inf.

But where the fund is, pursuant to the general intention of the founder, applied by the truflees to fome particular purpose which afterwards becomes unlawful, there a fresh application may doubtless be made of it according to the original defign. Thus,

1. Teftator by his will, in 1691, directed the refidue of his estate to be disposed of by his executors, for fuch charitable and pious ufes as they fhould in their discretion think fit; but he recommended them to lay out the greater part thereof for the advancement of the Chriftian religion. Lands were purchased with the bulk of the perfonalty, under a decree, which directed them to be conveyed to the city of London, in trust to pay part of the rents to Trinity College, Oxon, of which the teftator had been a member, other part to be paid to the corporation for propagating the gofpel in New England, for the purpose of inftructing the natives in the Chriftian religion, and the furplus rents to be paid, (agreeably to an appointment made by the Bishop of London and the furviving executor of the will, under a power given them by the court of felecting objects,) to the College of William and Mary in Virginia, for inftructing Indian children in the Chriftian religion. The diffenfions between Great Britain and America began in 1775, and continued till 1783, when the independence of the latter was declared. In 1790 an information was filed, infisting that, as the inhabitants of the American states were then aliens, the rents ought to be applied in fome other manner in fome of his majesty's dominions for the advancement of the Chriflian religion. It was infifted also, with refpect to the College of William and Mary in Virginia, (who put in their answer claiming to be still entitled to the rents,) that, although they had a charter from William and Mary, they could not then be confidered as a corporation: a corporation was the creature of the great feal, and as fuch they had ceafed to be one. They claimed as trustees, but could not be confidered as fuch, when the money paid to them would be out of the control of the court. Lord Chancellor du ring the argument afked, with refpect to the college, fuppofe they hould misbehave, where would the fci. fa. be brought? And he finally faid, that the trufts to the corporation to convert neighbouring infidels ceafing for want of objects, (there being then no neighbouring infidels,) the charity must be applied de novo. As to the other parties, he could not then confider them as corpora tions: therefore he referred to the Mafter to propofe a plan for the application of the produce of the eftate, according to the in

tentions

tentions of the teftator. Attorney-General v. City of London, 3 Bro. C. C. 171. 1 Vez. jun. 243. S. Č.

Sect. 2. Altered or not: Where the original Purpose, though lawful, cannot be effected.

1. "All the reft and refidue of my perfonal eftate, I give and "bequeath to my executors, in truft, to apply the fame to build "a church at Wheatley, where the chapel now is, in fuch man"ner as I fhall hereafter direct, or for want of fuch direction, as "my executors fhall think beft." The information prayed a general account and directions touching the plan and execution of the charitable bequeft. The Bishop of Oxford, as patron and parfon of Cuddefden, by his anfwer oppofed the erection of a new church, unless the furplus of the refidue could be applied towards an augmentation of the endowment of the chapelry annexed: The chaplain and chapel-warden answered to the fame effect, and propofed repairing the old chapel, and, with the furplus, augmenting the falary of the chaplain, &c. The next of kin infifted, that a new church or chapel must be built, and the furplus, if any, divided among them. As to the repairing, or augmenting the falary of the chaplain, &c. they oppofed that plan, infisting that the intention of the teftator must be implicitly followed; and, in cafe the bishop did not allow of a new chapel, that the bequest should be void, and the money divided. Sir Lloyd Kenyon at the Rolls obferved, that if the bishop objected, he could not interfere in the matter: As to repairing, &c. he could not do that. The intention must be implicitly followed, or nothing could be done. However, he referred it to the Mafter to take an account, &c. and to make a special report as to the plan of erecting a new chapel, and the expences attending it; and also with refpect to the bishop's affent for that purpose. Attorney-General v. Bishop of Oxford, 1 Bro. C. C. 444. n.

Sect. 3. Altered: In the Mode of adminiftering it, though the Subftance of the charitable Intent be ftill preferved.

1. Sir Richard P. Arden in 1794 at the Rolls, cited from the Regiftrar's book the following, as a more circumftantial statement of Attorney-General v. Leigh, than that given in 3 P. Wms. 145, in a note by the reporter:-The teftator gave 100l. to be laid out in building feven houfes, and the rectory of B. to C. and D. and the heirs of C., to the intent that they fhould erect feven houfes, and leafe them to feven poor men, (fuch as they thould think fit,) and give the profits to them; and in cafe of default in the performance of the truft for three months after the fame ought to have been performed, (which Sir Richard P. Arden fuppofed meant the building the houfes, &c.) the fame for ever after to go to the minifter and churchwardens of B.; (Sir Richard P. Arden apprehended he meant, that then the truft fhould devolve upon them.) Then a commiffion of charitable uses iffued. It de

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creed,