VALID AND INVALID GENERAL EXPRESSIONS, AND ALTERNATIVE AND INCOMPLETE GIFTS.

When a power is given by will to two or more, very slight expressions in the will are considered sufficient to show that the power is not exercisable for the benefit of the donees themselves, but that they are trustees of it, and can only exercise it for some purpose intended by the testator. If the testator, then, has not made his purpose clear, the power and trust are void for uncertainty; but if he has shown a charitable purpose, the gift is good, and the property must be applied for some charity. If the donees of the power then fail to appoint, the fund will be applied by the Court if the testator has at all indicated the objects of his bounty, but by the Crown if he has given no indication (Moggridge v. Thackwell, 1792, 7 Ves. 36; 32 E. R. 16; 6 R. R. 76; In re Dean, Cooper Dean v. Stevens, 1889, 41 Ch. D. 552).

Some narrow decisions have been given to the effect that gifts for "private charity" are invalid, upon the verbal ground that no objects are charitable unless they are for public benefit (Ommanney v. Butcher, 1823, 1 Turn. & R. 260; 37 E. R. 1098; 24 R. R. 42).

The following expressions have been held to create good charitable gifts:

Charity; charitable; pious uses (A.-G. v. Herrick, 1772, 2 Amb. 712; 27 E. R. 461). Charities, societies, and institutions (Obert v. Barrow, 1887, 35 Ch. D. 472).

The service of my Lord and Master, and, I trust, Redeemer (Powerscourt v. Powerscourt, 1824, 1 Mol. 616).

Purposes having regard to the glory of God in the spiritual welfare of His creatures (Townsend v. Carus, 1844, 3 Hare, 257; 67 E. R. 605; 64 R. R. 284).

Any religious institution or purposes (Wilkinson v. Lindgren, 1870, L. R. 5 Ch. 570).

Religious and charitable institutions and purposes (Baker v. Sutton, 1836, Keen, 224; 48 E. R. 292; 44 R. R. 65).

Such public charities and institutions, or such charitable purposes for the public advantage as trustees shall think fit (In re Pardoe, Maclaughlin v. A.-G., [1906] 2 Ch. 184).

The Protestant Alliance, or some one or more kindred institutions (In re Dolman's Trusts, 1897, 45 W. R. 630).

Knowledge (President of U. S. v. Drummond, 1838, cit. 7 H. L.

155).

627).

Learning in seminaries (Curtis v. Hutton, 1808, 14 Ves. 537; 33 E. R.

Education and learning (Whicker v. Hume, 1858, 7 H. L. Cas. 124; 11 E. R. 50).

Benefit and advantage of Great Britain (Nightingale v. Goulbourn, 1848, 2 Ph. Ch. 594).

Spread of the gospel (Lea v. Cooke, 1887, 34 Ch. D. 528).

Charitable and benevolent (Re Best, Jarvis v. Birmingham Corporation, [1904] 2 Ch. 354).

Charitable and deserving (In re Sutton, Stone v. A.-G., 1885, 28 Ch. D.

464).

Unnamed religious societies (In re White, [1893] 2 Ch. 41).

The poor and the service of God (In re Darling, [1896] 1 Ch. 50).

Religious and benevolent societies or objects (In re Lloyd, Lloyd Greame v. A.-G., 1893, 38 S. J. 50).

The furtherance of Conservative principles and religious and mental improvement (Re Scowcroft, Ormerod v. Vicar of Bishops Itchington, [1898] 2 Ch. 638).

Under the following words and expressions the trust has been held void for indefiniteness :

The interests of virtue and religion, and the happiness of mankind (Brown v. Yeall, before 1791, 10 Ves. 27; 32 E. R. 753; 6 R. R. 781n. 1).

Charity such as masses (Boyle v. Boyle, 1877, I. R. 11 Eq. 433). Benevolence and liberality (Morice v. Bishop of Durham, 1805, 10 Ves. 521; 32 E. R. 947; 7 R. R. 232).

Benevolent purposes (James v. Allen, 1817, 3 Mer. 17; 36 E. R. 7; 17 R. R. 4).

Missionary purposes (Scott v. Brownrigg, 1881, L. R. 9 Ir. 246). Charitable or public (Vezey v. Jamson, 1822, 1 Sim. & St. 69; 57 E. R. 27); and this has been followed in Scotch law (Blair v. Duncan, [1902] A. C. 37), by which also "charitable or religious" has been held void (Grimond v. Grimond, [1905] A. C. 124).

Hospitality or charity (Mayor of Gateshead v. Hudspeth, 1883, 49 L. T. 587).

Benevolent, charitable, and religious (Williams v. Kershaw, 1835, 1 Keen, 227; 48 E. R. 293; 42 R. R. 269).

Charitable or other purposes (Ellis v. Selby, 1836, 1 Myl. & Cr. 286; 40 E. R. 384; 40 R. R. 160).

Deserving literary men, or expenses of publishing testator's manuscripts (Thompson v. Thompson, 1844, 1 Coll. 381; 63 E. R. 464).

Charitable, philanthropic, or [a blank] has been held void by reason of the word "philanthropic " (Macduff v. Macduff, [1896] 2 Ch. 451).

Specific charitable purposes, or encouraging undertakings of general utility (Kendall v. Granger, 1842, 5 Beav. 300; 49 E. R. 592; 59 R. R. 507).

Sick poor, or any other utilitarian purposes (In re Woodgate, 1886, 30 S. J. 517).

Charitable or benevolent (Leavers v. Clayton, 1878, 8 Ch. D. 584). True religion in general and the comfort of the servants of God in particular (Budget v. Halford, 1873, W. N. 175).

These cases show that a trust in the alternative for charitable or indefinite purposes is void; also the Courts refuse to regard the words benevolent, philanthropic, or even public as included in charitable. Yet gifts for public purposes at specified localities have repeatedly been held good (Dolan v. Macdermot, 1867, L. R. 5 Eq. 60; 1868, L. R. 3 Ch. 676; Wilkinson v. Barker, 1872, L. R. 14 Eq. 96), and purposes conducing to the good of a county (A.-G. v. Earl of Lonsdale, 1827, 1 Sim. 105; 57 E. R. 518; 27 R. R. 176). In In re Allen, Hargreaves v. Taylor, [1905] 2 Ch. 400, a gift was held good which included "such charitable educational or other institutions of the town of K., and such other general purposes for the benefit of the town of K., or any of the inhabitants thereof, as the trustees should think fit."

If a testator has not completely expressed his intention, but has defined the property or amount intended to be given, and it is clear that he intended it for some charitable purpose or purposes, effect will be given to the gift; but if the amount is uncertain, or there is not a clear

charitable intention expressed, the gift will fail (In re White, [1893] 2 Ch. 41; Gillan v. Gillan, 1878, L. R. 1 Ir. 114; Aston v. Wood, 1868, L. R. 6 Eq. 419; Mayor of Glo'ster v. Osborn, 1847, 1 H. L. 272).

Where a testator gave a legacy to A., adding, "for the charitable purposes agreed upon between us," A.'s evidence was taken, and the whole was applied to purposes named by him (In re Huxtable, Huxtable v. Crawfurd, [1902] 2 Ch. 793).

GIFTS TO DOUBTFUL AND DEFUNCT SOCIETIES.

It often happens that a testator expresses to give a legacy to some society, and no society can be found exactly answering the name and description employed by him. The gift then is not void for uncertainty (Bunting v. Marriott, 1854, 19 Beav. 163; 52 E. R. 311); but the Court will decide what society is meant (Middleton v. Clitherow, 1798, 3 Ves. 734; 30 E. R. 1245; In re Doane, Times Reports, Oct. 26, 1892). If the society cannot be identified, the Court will apply the money cy-près (see infra, p. 686), that is to say, as nearly according to the testator's intention as is practically possible (Simon v. Barber, 1828, 5 Russ. 112; 38 E. R. 970; 29 R. R. 12; In re Davis, Hannen v. Hillyer, [1902] 1 Ch. 876). In the last-mentioned case the Court held that the word "institutions would include any authority or person, the Crown, or the Court. The Court may, however, sanction an agreement for division between rival claimants (In re Briscoe's Trusts, W. N. 1872, pp. 42, 76).

If the society named by the testator has ceased to exist before his death, the gift lapses (In re Rymer, [1895] 1 Ch. 19); but if it exists at his death, and is closed before payment of the legacy, the fund has become devoted to charity, and will be applied cy-près (In re Slevin, [1891] 2 Ch. 236). If, however, a bequest is made to a society not as part of its funds, but upon some special trust, the trust will not fail for default of the trustee (A.-G. v. Stephens, 1834, 3 Myl. & K. 347; 40 E. R. 132).

When legacies were given to two societies, which amalgamated before the testator's death, the combined society was held entitled to both legacies (In re Jay, Purday v. Johnson, Times Reports, Dec. 8, 1888). The close of one branch of a society will not cause a legacy to lapse (In re Bradfield, 1892, 36 S. J. 646).

In the case of In re Unite, Edwards v. Smith, 1906, W. N. 26, there was a gift of £20,000 towards the building and equipment of a certain hospital, and that object was nearly completed from other sources in the testator's lifetime. The question of the application of the surplus. after fulfilling the object was deferred.

OBJECTS IN FOREIGN COUNTRIES.

The cases on trusts for objects in foreign countries are not satisfactory. Some such trusts of a political nature have been held to be void (De Themmines v. De Bonneval, 1828, 5 Russ. 288; 38 E. R. 1035; 29 R. R. 17; Habershon v. Vardon, 1851, 4 De G. & Sm. 467; 64 E. R. 916), and a trust to establish a new charity in Pennsylvania was held to fail, where the President and Vice-President of the United States and the Governor of Pennsylvania were named trustees and declined to act (New v. Bonaker, 1867, L. R. 4 Eq. 655). If the object proposed in a

foreign country would not be good in England, the trust is void (In re Elliott, W. N. 1891, p. 9; De Garcia v. Lawson, 1798, 4 Ves. 433n.), and if not good in the foreign country it is void also. But if it is clear that the object will be carried out, it is good (In re Geck, W. N. 1893, p. 161; 69 L. T. 819), and the Court may order the fund to be paid to the trustees in the foreign country (Emery v. Hill, 1826, 1 Russ. 112; 38 E. R. 44; 25 R. R. 11).

REMOTENESS.

When a gift is made to a charitable object which cannot be effected at once, the Court holds the fund in suspense for a sufficient time to see if it can be effected, and only holds the gift to fail if it becomes clear on inquiry that it is not likely to be carried out in a reasonable time (In re White's Trusts, 1882, 33 Ch. D. 449; Biscoe v. Jackson, 1887, 35 Ch. D. 460); and even then the fund may be applicable cy-près (Wallis v. S.-G. for New Zealand, [1903] A. C. 173). It is also lawful to give a sum for charitable purposes, and direct the application to be postponed until a certain sum is accumulated (In re Swain, Monckton v. Hands, [1905] 1 Ch. 669; Martin v. Margham, 1844, 14 Sim. 230).

A gift over from one charity to another is good, and is not liable to be held void for remoteness (Christ's Hospital v. Grainger, 1849, 1 Mac. & G. 460; 41 E. R. 1343; In re Tyler, [1891] 3 Ch. 252; In re Beard's Trusts, Butlin v. Harris, [1904] 1 Ch. 270).

In some cases a clause providing that the fund shall revert to the donor if the charity becomes extinct is good (In re Bowen, [1893] 2 Ch. 491; Randell v. Dixon, 1888, 38 Ch. D. 213; In re Blunt's Trusts, Wigan v. Clinch, [1904] 2 Ch. 767).

In some cases a charitable gift has been held void for remoteness, when it did not commence within legal time (Alt. v. Lord Stratheden and Campbell, [1894] 3 Ch. 265; In re Roberts, 1881, 19 Ch. D. 520; Chamberlayne v. Brockett, 1872, L. R. 8 Ch. 206; Worthing Corporation v. Heather, 1906, W. N. 172).

SCHEMES.

The Court has jurisdiction to settle a scheme for the management of a permanent charity where the directions of the founder of the charity are not complete, and he has not conferred power on any specified persons to settle a scheme; but the Court cannot alter an existing charity without statutory authority (A.-G. v. Governors of Christ's Hospital, [1896] 1 Ch. 879).

THE CY-PRES DOCTRINE.

In charity cases we constantly meet with references to the cy-près doctrine or principle of applying property as nearly as possible according to the donor's intentions, when these intentions cannot be exactly carried

out.

When a donor has devoted property for ever to the performance of some charitable purpose for which there is scope at first, such as the release of captives in Barbary, but in the course of time there cease to

be any objects of such charity; in such cases it is settled law that property once devoted to charity is so devoted for ever, and on failure of the primary object the property will be applied to some other charitable purpose (Wilson v. Barnes, 1886, 38 Ch. D. 507; Spiller v. Maude, 1881, 32 Ch. D. 158n.).

A second class of cases in which the cy-près doctrine is referred to comprises those in which property is devoted to some charitable purpose, which exhausts the income at first, but in the course of time the income grows and shows a surplus. Many instances of the application of the principle in such cases were afforded by devises of land in London to city companies in ancient times, and some have been afforded by devises to colleges in the Universities. The leading case upon the subject is the Thetford School Case, 1609, 8 Co. Rep. 130.

A third class of cases is that in which the entirety of certain property is devoted to some charitable purpose, which does not exhaust the income in the first instance (Bishop of Hereford v. Adams, 1802, 7 Ves. 324; 32 E. R. 123; see 6 R. R. 76).

There is also a fourth class of cases in which a testator has devoted property to some charitable purpose, but owing to some impediment either of law or of the consent of some person or persons, or the default of some expected set of circumstances, the testator's object cannot be carried out in the manner pointed out by him. The Courts have then held in some cases that the testator had only a particular intention, and, that failing, the gift has failed. But in other cases they have held that, beyond the particular intention expressed, there was a general intention of charity, and then the failure of the particular intention has let in the general intention, and the Court has applied the fund cy-près. The best principle on which such a distinction can be logically based is, that when the gift can be read as devoting the property to charity, and adding a condition subsequent to the gift, then, if the performance of the condition becomes impossible, the gift becomes absolute; whereas, if the condition is precedent to the gift, and the condition becomes impossible, the gift fails altogether. But it is difficult to reconcile all the cases with this principle (4.-G. v. Downing, 1766, Amb. 549, 571; Rodwell v. A.-G., Times Reports, June 8, 1886; Moggridge v. Thackwell, 1803, 7 Ves. 36; 32 E. R. 15; 6 R. R. 76; Biscoe v. Jackson, 1887, 35 Ch. D. 460; Chamberlayne v. Brockett, 1872, L. R. 8 Ch. 206; In re Taylor's Estate, 1888, 58 L. T. N. S. 538; Hoare v. Hoare, 1886, 56 L. T. N. S. 147).

DEATH DUTIES.

A charitable gift is in general subject to a legacy or succession duty of 10 per cent. on its capital value. See DEATH DUTIES.

Liability of Officials.

Persons dealing with charitable institutions, or the officials of such institutions, sometimes experience a difficulty in knowing whom to sue for services rendered or goods supplied. A corporation, or the trustees of an unincorporated institution, would in general be under no liability in such cases. The functions of the corporation or trustees are usually limited to appointing certain masters, ministers, managers, and the like, and these carry on the business of the institution, being frequently