BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Morice v Bishop of Durham [1805] EWHC Ch J80 (20 March 1805)
Cite as: [1805] EWHC Ch J80, 32 ER 947, (1805) 10 Ves 522

[New search] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [1805] EWHC Ch J80
(1805) 10 Ves 522; 32 ER 947


18th and 20th March 1805





    This cause came on upon an appeal by the Defendant, the Bishop of Durham, from the decree of the Master of the Rolls.
    Mr. Richards and Mr. Martin, in support of the Appeal. The whole interest in this property is given to the Bishop of Durham, as a legatee: not merely by the appointment of him, as executor. The question may be considered in two points of view; either of which will sustain this disposition, at least as against the next of kin: 1st, as a good bequest to Charity: if not, 2dly, the Bishop has a right fairly to avail himself of it, to carry into execution the liberal and benevolent intention of the testatrix by a disposition among such objects as he may think answer the description; disclaiming the application of any part of the property to his own use.
    If this is a bequest to Charity, the generality of the description will not affect the disposition; and if that is the object, it is not necessary to point out any particular Charity. Charity, in the abstract, is a very difficult consideration. In our Law the sense of that word is almost as extensive as that, in which it is used by general authors. The Statute of Elizabeth (stat. 43 Eliz. c. 4), embraces a great variety of objects, that do not properly come within the ordinary meaning of the word "charity" but fall under the description of "liberality," in its usual sense; as repairs of bridges, ports, etc. Money, directed to be applied to such objects, if not prevented by the Statute of Geo. II. (stat. 9 Geo. II. c. 36), would be applied in this Court, as a disposition to Charity. Though clearly not within the ordinary signification, it answers the description of Charity, connected with liberality. It is difficult to consider a gift to the poor of a parish as charity; for, as the Law is now constituted, that is a gift in ease of the land-owners of the parish; the tenant paying so much less rent in proportion to the poor-rates and the other taxes. These words are equivalent to "charity," in the legal acceptation. The authorities have established many objects, as charitable, which are not within the Statute of Elizabeth (stat. 43 Eliz. c. 4); as the establishment of a Jesuba (De Costa v. De Pas, Amb. 228), an illegal establishment, upon a supposed general charitable intention; so, the establishment of the Tancred students and the Setonian prizes, the disposition in Howse v. Chapman (4 Ves. 542), for beautifying the city of Bath, are not within the Statute; and, though liberal, cannot be described as charitable, objects, in the strict sense. But, upon the authorities almost every thing, from which the public derive benefit, may be considered a charity. Suppose, the testatrix had expressed the object of promoting erudition and science: various objects might be suggested; as the increase of Fellowships, the British Museum, etc. Why should such dispositions be discouraged? Lord Chief Justice Wilmot in his argument upon the case of Downing College[1] speaks of the advancement of useful learning and science as a meritorious object.
    The case upon Mr. Bradley's Will[2] may be considered as bearing hard upon this question; as that disposition might perhaps in some respects be construed Charity. That case, though frequently cited, has not been mentioned with great respect by any Judge: nor was it satisfactory to the Bar. Upon all the cases upon charity, which were stated by your Lordship in Moggridge v. Thackwell (3 Bro. C. C. 517; 1 Ves. jun. 464; 7 Ves. 36), that must be considered a single case, not confirmed by any other; and, not merely unsupported, but contradicted by most. There was not more difficulty in arranging that design than the mission to America and several others. The distinction between this case and Moggridge v. Thackwell is, that in this instance the person, in whom the confidence is placed, is living; and can execute the trust.
    In considering the terms used in this Will, "benevolence" is that sort of goodwill, peculiarly intended by "charity ": especially if it is collected from the Statute of Elizabeth (stat. 43 Eliz. c. 4): but whether in the extended, or the confined, sense, "benevolence" has at least the same latitude; and is in truth only charity in an enlarged sense. Dr. Johnson defines "benevolence" to be charity done or given. The term "liberality " is certainly more loose: but in the sense, in which it is used here, coupled with a word, clearly importing Charity, in a Will, reposing this high trust in the Bishop of Durham, it cannot be referred to such subjects, as it was in the argument at the Rolls: horse-racing, etc. Suppose the words were "liberality and charitable purposes": the construction must have been a liberal application to such charitable purposes as the executor should think fit; extending it beyond the constrained sense of charity. There are many most proper and legitimate objects of that benevolent and liberal charity, in the enlarged sense, received by the Law of England; though not within the confined sense. But if "liberality" is to be considered as totally distinct from "charity," yet "benevolence" intimates, that to some extent objects of charity are intended. The true construction is charitable objects, extended by the effect of the other word.
    If the decree is right in this respect, then the Bishop is himself the legatee; disclaiming however any intention of application to private purposes of his own. This point was not much touched at the Rolls. If personal property is bequeathed to a person, with a request, that he will at his death bequeath it among the relations of the original testator, that is now clearly established to be a trust, upon Pierson v. Garnett (2 Bro. C. C. 38, 226. See 8 Ves. 380. Malim v. Keighley, 2 Yes. Jun, 333, 529, and the note, 1 Ves. jun. 272), and many other cases. But, supposing the objects were not certain, and could not be defined, the legatee would be entitled for his own use. If the bequest was to the Bishop, to distribute to such objects as his disposition should suggest to him: the objects not being defined, he must take the property himself. This Will makes a considerable provision for the next of kin.
    The Attorney-General and Mr. Mitford, against the Decree. The Attorney-General stated, that he appeared officially for those, whose interests the Attorney-General ought to support; and should have felt himself bound to appeal, if the other Defendant had not appealed; considering this a question of so much doubt, that the first decision, at the Rolls, ought not to bind it.
    This is a disposition substantially to charity; and, if so, there is no such uncertainty, as will defeat it. The only question could be, whether the execution should be in this Court, or by the King's Sign Manual: but clearly, if it can be brought up to a design of charity, the uncertainty of the particular object will not defeat the general purpose. It is not necessary to make use of the word "charity," or to point out some specific object, falling within the range of that word. Any other words, enabling the Court with a sufficient degree of certainty to collect the intention, are equivalent. It is not necessary to name any individual legatee, if he is distinctly pointed out in any way; and "charity" is a legatee, favoured more than any other; and therefore a general description is sufficient. It is more easy to say, what does not, than what does, come within the description of " charity." The sense, in which that word is used in the Christian religion, is most comprehensive; comprising every moral virtue and duty. The objects, this Will has in view, are objects both of benevolence and liberality: the words restrained, so as to exclude all selfish views, and all purposes of mere ostentation, particularly those attended with cruelty: such a disposition of the words in effect coming nearer the true nature of "charity." Suppose, a Roman Catholic bequeathed his personal estate to his Confessor, to be disposed of in such purposes of charity as he should think proper: it could not be doubted, that superstitious uses, which this Court would not permit, were intended; as masses, etc.: but that probable object would not vitiate the charitable design; and the effect would be, that the Court would superintend the disposition, and not destroy it. If the word "liberality" is not to be limited, so as to prevent an extravagant construction, the word "benevolence" is sufficiently large to signify "charity "; and, if that is one of the objects, it shall not be defeated by being coupled with another. At least under the word "benevolence" the bequest must avail to some extent; and upon the principle of The Attorney-General v. Doiley (4 Vin. 485; 2 Eq. Ca. Ab. 194. Stated from the Register's Book, 7 Ves. 58, in the note), there being two objects, half ought to be given to one; and half to the other.
    Mr. Romilly, Mr. Bell, and Mr. Wingfield, for the Plaintiffs, the next of kin, in support of the Decree. This residue is given to the Bishop of Durham upon a trust so vague and indefinite, that it cannot be executed; and therefore there is a resulting trust for the next of kin. The first question, whether this is a trust, was at the Rolls taken to be clear.
    The Lord Chancellor. If a testator expressly says, he gives upon trust, and says no more, it has been long established, that the next of kin will take. Then, if he proceeds to express the trust, but does not sufficiently express it, or expresses a trust, that cannot be executed, it is exactly the same as if he had said, he gave upon trust, and stopped there; as in the Bishop of Cloyne v. Young (2 Ves. sen. 91). There is no difficulty upon that. In Pierson v. Garnett (2 Bro. C. C. 38, 226) and the other cases of that sort, the question was, whether the testator had said, he gave upon trust; and the decision was, that he had, as the object and the subject were sufficiently described: but if he had used the word "trust," there could be no doubt, the Court must have held, that he meant trust.
    For the Plaintiffs. Then, upon the second question, the nature of the trust: it must be admitted, that if the bequest is in trust for charity, it is no objection, that the charity is not particularly defined: neither is it necessary, that the testator should use the word "charity." The question always is, whether he has given to a charity; and therefore in this case it must be, what is the meaning in a Court of Justice of these two words; which, as there is no decision upon it, is a question rather of philology, than of law. It is said, the word "charity" has a most enlarged sense; considered, as it is used in the Gospel, as comprehending every virtuous affection, of which the mind is capable. But that is not the construction put upon it in this Court; the sense, in which your Lordship is to consider it, and in which it is used by mankind in general. Dr. Johnson does not say, "benevolence" is synonymous with "charity." He states four senses, in which the word is used: "disposition to do good: kindness: charity: good-will." "Charity" is only one of the senses, in which he states this word to be used by good authors. A large establishment, provided by a Peer for his son upon marriage, is an act of benevolence, not charity. If a son shews his gratitude to his father by kindness, attention to him in sickness, by relieving his difficulties, that is benevolence; not charity, in the common use of that word.
    But it is a new rule of criticism, that a subsequent word, of more extensive signification, shall not enlarge a preceding, more limited, word; but, that the sense of the latter shall be confined by the former. Dr. Johnson's statement upon the word "liberality" and his example are taken from Shakespeare. That word in English has precisely the same sense as the Latin word. There are some definitions of that word in Latin; and Dr. Johnson had that in view, when giving the definition by the word "munificence." Cicero has the following passages:
    (Cic. de Off. Lib. I. sec. 8.) "Justitia... et huic conjuncta bene ficiontia, quam eandem vel benignitatem vel liberalitatem appollari licet."
    (Ibid. sec. 14.) Deinceps (ut erat propositum) do beneficientia ac liberalitate dicatur: qua quidem nihil est nature hominis accommodatius; sed habet multas cautiones. Videndum est enim primum, ne obsit benignitas & iis ipsis, quibus benigne videbitur fieri, et ceteris: deinde ne major benignitas sit quam facultates: tum ut pro dignitate cuique tribuatur. Id enim est justite fundamentum; ad quam haec referenda sunt omnia. Nam et qui gratificantur cuipiam quod obsit illi, cui prodesse velle videantur, non benefici, neque liberales, sed perniciosi assentatores judicandi sunt et qui aliis nocent, ut in alios liberales sint, in eadem sunt injustitia, ut si in suam rem aliena convertant."
    In another part (Ibid. Lib. II. see. 16), he describes the different kinds of liberality. The one, he says, may be called prodigal: the other liberal.
    "Prodigi, qui epulis et viscerationibus et gladiatorum muneribus, ludorum venationumque apparatu pecunias profundunt in eas res, quarum memoriam aut brevem aut nullam omnino sunt relicturi: liberales autem qui suis facul tatibus aut captos a prsedonibus redimunt, aut aes alienum suscipiunt amicorum, aut in filiarum collocatione adjuvant, aut opitulantur, vel in re quaerenda vel augenda."
    But, though he states that to be his opinion, he says, other philosophers have differed from him; and, noticing the opinion of Theophrastus, proceeds thus:
    "Mihi autem ille fructus Liberalitatis, cujus pauca exempla posui, multo et major videtur et certior."
    He must, therefore, have understood those to be instances of liberality, but not in so certain a sense as he has given.
    There are authorities in the English language: but it is not accurately described in any English author. One, of great authority, Dr. Paley (1 Pal. Mor. Phil. 256) after describing the different species of charity, proceeds thus:
    "Having thus described several different exertions of charity, it may not be improper to take notice of a species of liberality, which is not charity in any sense of the word: I mean the giving of entertainments or liquor for the sake of popularity: or the rewarding, treating, and maintaining, the companions of our diversions; as hunters, shooters, fishers, and the like. I do not say, that this is criminal: I only say, that it is not charity; and that we are not to suppose, because we give, and give to the poor, that it will stand in the place, or supersede the obligation, or more meritorious and disinterested bounty."
    That shews the proper use of "liberality," as contradistinguished from "charity." The words therefore are not synonymous. But the testatrix, selecting the former word, and anxiously avoiding the latter, must have meant something very different from "charity." The meaning of "liberality" is so extensive, that it is impossible to define it. Upon that very ground this disposition is void; and for that very reason the Court cannot compel tie executor to perform the trust; or ascertain, when there is a breach. There are various instances of liberality, that cannot be described as charity: the establishment of a Cabinet of Natural History, Anatomical Exhibitions, Galleries of Pictures, to be open to the public: a legacy to the African Society, for acquiring information in the interior of Africa to contribute to raise the degraded state of society in that part of the world: all these are instances of liberality; but not charity. The instances, mentioned at the Rolls, were mentioned only for the purpose of shewing, that the sense of "liberality" is so vague, that it varies with the fashion of the time. Exhibitions of combats by gladiators and wild beasts were once considered as within that description. The passage in Cicero, and that, cited by Lord Chief Justice Wilmot (117il'. 53) from the Digest (Dig. 33, tit. 2), shew, they were so considered by philosophers of great name. It must depend much upon the person to make the distribution; and though an improper application by the Bishop cannot be supposed, there can be no security against the disposition of the heir. The legislature of this country once thought, that the establishment of prizes for running horses was an object of liberality; and at this time objects might perhaps be selected, having in the opinion of many the most pernicious tendency. Some of the objects, that have been mentioned on the other side as objects of charity, are not so; but are proper objects of liberality; and of that nature would be an application of this property to the Plaintiff, a clergyman with a large family; which could not come under the description of charity; according to Moggridge v. Thackwell where an application of very large property among the relations of the testatrix, in moderate, but not indigent, circumstances, Lord Rosslyn, with great approbation, and a strong wish to support that plan, thought impossible, as not within any sense charity.
    There are four objects, within one of which all charity, to be administered in this Court, must fall: 1st, relief of the indigent; in various ways: money: provisions: education: medical assistance; etc.: 2dly, the advancement of learning: 3dly, the advancement of religion; and, 4thly, which is the most difficult, the advancement of objects of general public utility. A just application of this property within the meaning of this testatrix will not fail within any of those objects: for instance, assisting individuals, not in a state of indigence, but possessing the comforts of life, is liberality; but not charity in any of those senses. The object in Howse v. Chapman (4 Yes. 542) was established, not as charity, but as being clear, and defined, and not illegal; and so the object of establishing cabinets of coins, medals, etc., to be open to the public, would not be liable to objection. The objection in this instance is, not, that this is illegal, but, that it is so vague and uncertain, that it cannot be carried into execution. Suppose, the trustee was to divert the property to some of those doubtful purposes, which have been alluded to: is the Court to direct an inquiry; and what is to be the criterion? It is not very easy to determine, where "generous profusion," according to Dr. Johnson's definition, ends, and prodigality begins.
    In Brown v. Yeall (7 Ves. 50, n.) the object was held so vague, that it could not be executed: not, that the distribution of such books as were in the view of that testator was a vague object: but the mode was not pointed out. It was thrown entirely upon the Court of Chancery to say, who were the persons, what the books, and what the manner of distribution. Though the general object was pointed out, yet its nature was vague and uncertain. No case has yet overturned that decision; and it goes infinitely beyond this case: the object in Mr. Bradley's Will being much more specific. The object in Townley v. Bedwell (6 Ves. 191), independent of the objection upon the Statute (stat. 9 Geo. II. c. 36) would have been good, but for its vagueness and uncertainty; which was the principal ground. In Gwynn v. Cardon, in the Court of Exchequer a few years ago, a sum of money was given by Will, to be employed in giving Prizes by the President of the Royal Academy for the best examples of the Fine Arts, Sculpture and Painting, or one of them; but it was expressed in so vague a way, that the Court held, it could not be executed, and was void. The Attorney-General v. Whorwood (1 Ves. sen. 534) after the decision by Lord Lardwicke came as Lord Bedesdale states in the note (4 Ves. 434) to Corbyn v. French, before Lord Northington; who thought the disposition not good as a charitable bequest, and declared the whole void: though clearly many of the objects were charitable. That case therefore proves, that this cannot be divided; if liberality cannot be construed charity; for the Court cannot ascertain, how much goes to one object, and how much to the other. The word "benevolence" certainly may be used with a view to charity: but the other word seems intended to explain that, and to prevent misapprehension; shewing, charity was not intended; but something in a more enlarged sense.
    The Lord Chancellor. In Brown v. Yeall Lord Thurlow did not explain himself fully. The words were loose enough; and, I remember, Lord Thurlow said in the course of the argument, he did not know, what books had a tendency to promote the happiness of mankind. But, the testator having looked to virtue and religion, and connected them with the description of his purpose, as a charitable purpose, and left the execution to this Court, I should question, whether he should not have been understood to intend upon the whole such purpose as in the meaning of this Court would be charitable. As to The Attorney-General v. Whorwood, the charity was wholly disappointed; as every part was connected; as in the instance of a bequest to educate children; if one part of the purpose is first to build a school. (Grieves v. Case, 1 Ves. Jun. 548.)
    Mr. Richards, in Reply. Some of the objects, pointed out by Cicero, are in our law objects of charity; as the redemption of prisoners: the marriage of poor maidens, There is nothing in the word "liberality" inconsistent with charity; and "benevolence" has the same meaning. That species of bounty, not, strictly speaking, charity bestowed upon a person with a considerable income apparently, but a large family, and from circumstances not equal to bring up that family, according to the rank he fills in life, is more properly charity than more bounty to the poor. As to the terms, used in Mr. Bradley's Will (Brown v. Yeall, 7 Ves. 50, n.) many misguided people have lately thought books of the most mischievous tendency conducive to the happiness of mankind. But the Court will judge of the intention; and if a good purpose can be discerned, will cut down that part, which is absurd and mischievous. That case was not pressed farther; as it was thought, the law would make the best disposition. In The Attorney-General v. Whorwood that part, that was charitable, was only an incident; and followed the principal; which was void. In the Act of Parliament, giving plates for racing, the object was not liberality, but the encouragement of the breed of horses.
    The Lord Chancellor. This, with the single exception of Brown v. Yeall (7 Ves. 50, n.), is a new case. The questions are, 1st, whether a trust was intended to be created at all? 2dly, whether it was effectually created? 3dly, if ineffectually created, whether the Defendant, the Bishop of Durham, can according to the decisions, and upon the authority of those decisions, take this property for his own use and benefit. As to the last, I understand, a doubt has been raised in the discussion of some question, bearing analogy to this, in another Court; how far it is competent to a testator to give to his friend his personal estate, to apply it to such purposes of bounty, not arising to trust, as the testator himself would have been likely to apply it to. That question, as far as this Court has to do with it, depends altogether upon this: if the testator meant to create a trust, and not to make an absolute gift, but the trust is ineffectually created, is not expressed at all, or fails, the next of kin take. On the other hand, if the party is to take himself, it must be upon this ground, according to the authorities; that the testator did not mean to create a trust; but intended a gift to that person for his own use and benefit; for if he was intended to have it entirely in his own power and discretion, whether to make the application or not, it is absolutely given; and it is the effect of his own Will, and not the obligation imposed by the testament: the one inclining, the other compelling him, to execute the purpose. But, if he cannot, or was not intended to, be compelled, the question is not then upon a trust that has failed, or the intent to create a trust: but the Will must be read, as if no such intention was expressed, or to be discovered, in it. (14 Ves. 370. Paice v. The Archbishop of Canterbury.)
    Pierson v. Garnett (2 Bro. C. C. 38, 226. Ball v. Vardy, 1 Ves. jun. 270, and the note, 272), and the other cases of that class, do not bear upon this in any degree; for the question, whether a trust was intended, arose from two or three circumstances; which must all concur, where there is no express trust. Prima facie an absolute interest was given; and the question was, whether precatory, not mandatory, words imposed a trust upon that person; and the Court has said, before those words of request or accommodation create a trust, it must be shewn, that the object and the subject are certain; and it is not immaterial to this case, that it must be shewn, that the objects are certain. If neither the objects nor the subject are certain, then the recommendation or request does not create a trust; for of necessity the alleged trustee is to execute the trust; and the property being so uncertain and indefinite, it may be conceived, the testator meant to leave it entirely to the will and pleasure of the legatee, whether he would take upon himself that, which is technically called a trust. Wherever the subject, to be administered as trust-property, and the objects, for whose benefit it is to be administered, are to be found in a Will, not expressly creating trust, the indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the Court as evidence, that the mind of the testator was not to create a trust; and the difficulty, that would be imposed upon the Court to say, what should be so applied, or to what objects, has been the foundation of the argument, that no trust was intended.
    But the principle of those cases has never been held in this Court applicable to a case, where the testator himself has expressly said, he gives his property upon trust. (2 Ves. & Bea. 298.) If he gives upon trust, hereafter to be declared, it might perhaps originally have been as well to have held, that, if he did not declare any trust, the person, to whom the property was given, should take it. If he says, he gives in trust, and stops there, meaning to make a codicil, or an addition to his Will, or, where he gives upon trusts, which fail, or are ineffectually expressed, in all those cases the Court has said, if upon the face of the Will there is declaration plain, that the person, to whom the property is given, is to take it in trust; and, though the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, the party taking shall be a trustee; if not for those, who were to take by the Will, for those, who take under the disposition of the Law. It is impossible therefore to contend, that, if this is a trust ineffectually expressed, the Bishop of Durham can hold for his own benefit. I do not advert to what appears upon the record of his intention to the contrary, and his disposition to make the application; for I must look only to the Will, without any bias from the nature of the disposition, or the temper and quality of the person, who is to execute the trust.
    The next consideration is, whether this is a trust effectually declared; and, if not as to the whole, as to part. I put it so; as it is said, if the word "benevolence" means charity, and "liberality," means something different from that idea, which in a Court of justice we are obliged to apply to that word "charity" (and, I admit, we are obliged to apply to it many senses, not falling within its ordinary signification), there is a ground for an application in this case partially, if it cannot be wholly, to charity. It does not seem to me upon the authorities, particularly The Attorney General v. Whorwood (1 Ves. [sen.] 534. Grieves v. Case, 1 Ves. jun. 548), that the argument for a proportionate division, or a division of some sort would be displaced. I take the result of that case to be, that the substratum of that charity failed; and all those partial dispositions, that would have been good charity, if not connected with that, failed together with it. It has been decided upon that principle, that, though money may be given to an infirmary or a school, yet, if that bequest is connected with a purpose of building an infirmary or school, and the money is then to be laid out upon it, so built, the purpose, which is the foundation, failing, the superstructure must fail with it. The Attorney General v. Doyley (4 Vin. 485; 2 Eq. Ca. Ab. 194. Stated from the Register's Book, in the note, 7 Ves. 58) is almost the only case, that has been cited for a proportional division. The testator expressly directed the trustees to dispose of his estate to such of his relations, of his mother's side, who were most deserving, and in such manner and proportions as they should think fit to such charitable use as they should think most proper and convenient and the Court, which has taken strong liberties upon this subject of charity, though the manner and proportion were left to certain individuals, held, that equality is equity, and there should be an equal division; but it is expressly declared, that those, who took, were persons, who could take under a bequest to charitable uses; and there was no difficulty in that case in saying, those words must be construed according to the habit and allowed authorities of the Court.
    The only case, decided upon any principle, that can govern this, is Brown v. Yeall (7 Ves. 50, note); which applies strongly. I do not trust myself with the question, whether the principle was well applied in that instance: but the decision furnishes a principle, which the Court must endeavour well to apply in cases, that occur: I do not hesitate to say, I entertain doubt, not of the principle, upon which that case was decided, but, whether it was well applied in that instance. Mr. Bradley was a very able lawyer: yet he mistook his way; as Serjeant Aspinall had not long before. Mr. Bradley gave a great portion of his fortune, to accumulate for many years; and meaning, that it should be disposed of to charitable purposes, constituted a fund; expressly stating, that his purpose was a charitable purpose; and confirming that by directing that charitable purpose to be carried on, as to the mode of executing it, by that Court, which according to the constitution of the country ordinarily administers property, given to charitable uses. In his opinion therefore, independent of particular authority, there was a principle, suggested by all other cases of trust, that if a trust was declared in such terms, that this Court could not execute it, that trust was ill-declared, and must fail, for the benefit of the next of kin. The principle, upon which that trust was ill-declared, is this. As it is a maxim, that the execution of a trust shall be under the controul of the Court, it must be of such a nature, that it can be under that controul; so that the administration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust: a trust therefore, which, in case of mal-administration could be reformed; and a due administration directed; and then, unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided, that the Court can neither reform mal-administration, nor direct a due administration. That is the principle of that case. Upon the question, whether that principle was well applied in that instance, different minds will reason differently. I should have been disposed to say, that, where such a purpose was expressed, it was not a strained construction to hold, that the happiness of mankind intended was that, which was to be promoted by the circulation of religious and virtuous learning: and, the testator having stated that to be the charitable purpose, which unquestionably was so, the distribution of books for the promotion of religion, the Court might have so understood him; and the testator having not only called it a charitable purpose, but delegated the execution to this Court, ought to be taken to have meant that.
    Upon these grounds, in a subsequent case (The Attorney General v. Stepney, 10 Ves. 22), as to the Welch charities, it appeared to me too much, considering the Society in this country for the Propagation of the Gospel, etc., to say, a trust for the circulation of bibles, prayer-books, and other religious books, was not good. Then, looking back to the history of the Law upon this subject, I say, with the Master of the Rolls (9 Ves. 406), that a case has not been yet decided, in which the Court has executed a charitable purpose, unless the Will contains a description of that, which the Law acknowledges to be a charitable purpose; or devotes the property to purposes of charity in general. Upon those cases, in which the Will devotes the property to charitable purposes, described, observation is unnecessary. With reference to those, in which the Court takes upon itself to say, it is a disposition to charity, where in some the mode is left to individuals, in others individuals cannot select either the mode, or the objects, but it falls upon the King, as parens patriae, to apply the property, it is enough at this day to say, the Court by long habitual construction of those general words has fixed the sense; and, where there is a gift to charity, in general, whether it is to be executed by individuals, selected by the testator himself, or the King, as parens patriae, is to execute it (and I allude to the case in Levins (The Attorney-General v. Matthews, 2 Lev. 167)), it is the duty of such trustees, on the one hand, and of the Crown, upon the other, to apply the money to charity, in the sense, which the determinations have affixed to that word in this Court: viz. either such charitable purposes as are expressed in the Statute (stat. 43 Eliz. c. 4), or to purposes having analogy to those. I believe, the expression "charitable purposes," as used in this Court, has been applied to many Acts described in that Statute, and analogous to those, not because they can with propriety be called charitable, but as that denomination is by the Statute given to all the purposes described.
    The question then is entirely, whether this is according to the intention a gift to purposes of charity in general, as understood in this Court: such, that this Court would have held the Bishop bound, and would have compelled him, to apply the surplus to such charitable purposes as can be answered only in obedience to decrees, where the gift is to charity, in general: or is it, or may it be according to the intention, to such purposes, going beyond those, partially, or altogether, which the Court understands by "charitable purposes"; and, if that is the intention, is the gift too indefinite to create an effectual trust, to be here executed? The argument has not denied, nor is it necessary, in order to support this decree, that the person, created the trustee, might give the property to such charitable uses, as this Court holds charitable uses within the ordinary meaning. It is not contended, and it is not necessary, to support this decree, to contend, that the trustee might not consistently with the intention, have devoted every shilling to uses, in that sense charitable, and of course a part of the property. But the true question is, whether, if upon the one hand he might have devoted the whole to purposes, in this sense charitable, he might not equally according to the intention have devoted the whole to purposes benevolent and liberal, and yet not within the meaning of charitable purposes, as this Court construes those words; and, if according to the intention it was competent to him to do so, I do not apprehend, that under any authority upon such words the Court could have charged him with mal-administration, if he had applied the whole to purposes, which according to the meaning of the testator are benevolent and liberal: though not acts of that species of benevolence and liberality, which this Court in the construction of a Will calls charitable acts.
    The question therefore resolves itself entirely into that; for I agree, there is no magic in words; and if the real meaning of these words is charity or charitable purposes, according to the technical sense, in which those words are used in this Court, all the consequences follow: if on the other hand the intention was to describe any thing beyond that, then the testator meant to repose in the Bishop a discretion, not to apply the property for his own benefit, but that would enable him to apply it to purposes more indefinite than those, to which we must look; considering them purposes, creating a trust; for, if there is as much of indefinite nature in the purposes, intended to be expressed, as in the cases, to which I first alluded, where the objects are too uncertain to make recommendation amount to trust, by analogy, the trust is as ineffectual: the only difference being, that in the one case no trust is declared; and the recommendation fails; the objects being too indefinite: in the other, the testator has expressly said, it is a trust; and the trustee consequently takes, not for his own benefit, but for purposes not sufficiently defined to be controlled and managed by this Court. Upon these words much criticism may be used. But the question is, whether, according to the ordinary sense, not the sense of the passages and authors alluded to, treating upon the great and extensive sense of the word "charity," in the Christian religion, this testatrix meant by these words to confine the Defendant to such acts of charity or charitable purposes as this Court would have enforced by decree, and reference to a Master. I do not think, that was the intention; and, if not, the intention is too indefinite to create a trust. But it was the intention to create a trust; and the object being too indefinite, has failed. The consequence of Law is, that the Bishop takes the property "upon trust to dispose of it, as the Law will dispose of it: not for his own benefit, or any purpose this Court can effectuate. I think, therefore, this decree is right.
    The Decree was affirmed.

Note 1   The Attorney General v. Lady Downing, Wilm. 1; Amb. 550, 571.The Attorney General v. Bowyer, 3 Ves. 714; 5 Ves. 300.The Attorney General v. Vigor, 8 Ves. 250.    [Back]

Note 2   Brown v. Yeall, stated 7 Ves. 50, in the noteto Moggridge v. Thackwell.    [Back]

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII