build, that an interest in land is to be purchased, in which case the gift cannot be sustained.

In the Attorney General v. Hyde (x), the testatrix ordered the sum of 1500l. to be paid, and laid out under the direction of the minister and churchwardens of Royston, for the time being, for the purposes of erecting a free school there, for 12 poor boys and 12 poor girls of that parish, and directed, that as soon as the same should be built, 20007. should be placed out at interest, and the interest applied for the maintenance of a schoolmaster and schoolmistress, and for teaching the boys and girls to read, write, &c. It appeared that there was a piece of ground in the parish, formerly part of the waste, upon which a schoolhouse had been built; which fact, it was contended, was in the testatrix's contemplation, and that her intention was, that the school should be re-erected upon that foundation; but Lord Bathurst thought, as the testatrix had not pointed at that particular piece of ground, but appeared to mean, to have a school-house of her own foundation, it must be taken as a mere bequest for the purpose of building a school, which was void.

A charitable society, called The Butchers' Charitable Institution, was formed by certain men of opulence in that business, for the relief of the poorer members of the trade. In the year 1829, it was proposed, by the members of that institution, that almshouses should be built, in which poor members, who were to be relieved, should reside; and a person of the name of Knight offered to supply a piece of ground for the purpose. At a meeting of the members in July, 1829, it was resolved, that Knight's offer should be accepted; and various sums were subscribed towards the erection of the almshouses, and a building fund was formed; and the title deeds of that piece of ground were sent by Knight to the officers of the institution, and some of them were let into the receipt of the rents and profits of the land. In the latter end of the year 1831, which was during the (x) Ambl. 751; S. C. nomine At- C. C. 444 n. torney General v. Hutchinson, 1 Br. Sim. 659.

See 6 Ves. 408, 5

time when the trustees of the institution, were in the receipt of the rents of the land; but before there was any actual conveyance made of the land, a person named Graves, who was himself a member of the institution, and acquainted with the resolution respecting the almshouses and building fund, and the offer of the land made by Knight, made his will, by which he bequeathed in these words: "I give and bequeath to the Butchers' Charitable Institution, the sum of 5000l., towards building almshouses to the said institution." After his death, a conveyance of the land was made, according to the requisitions of the statute 9 George II. c. 36. On a bill filed by persons representing the charitable society, against the testator's executors, for payment of the legacy, Sir L. Shadwell, V. C., said, that he could not, according to any fair and reasonable interpretation of the words of the bequest, hold that the testator did point at the land in question, or any other land; for the words are, "I give and bequeath to the Butchers' Institution the sum of 5000l., towards building almshouses to (which his Honour considered to mean the same as for,) the said institution." He admitted, that if the testator had said "towards building the almshouses," the court might have held that those words did point at the land; but he had used general terms. Therefore, though his Honour had no doubt in his own mind, what the testator intended, he was bound to say as a judge, that the intention was not so expressed as to enable the court to order the legacy to be paid, but the case was so fit to be brought under the consideration of the court, that the bill was dismissed without costs (h).

It was contended by the defendants in the case last cited, that the land in question was not in mortmain at the testator's death, inasmuch as Knight during his life was not compellable to make a conveyance of the land to the institution, before which, the charity had neither a legal nor equitable lien on the land, and the trustees at the utmost held it only from year to year, but it was unnecessary to decide that point.

(h) Giblett v. Hobson, 5 Sim.651. Affirmed by Lord Chancellor, Nov. 13, 1834.

SECTION V.

Of Bequests of Personalty which fail on account of being connected with a devise of real estate.

WHEN a bequest of personal property for charitable purposes, which if standing alone would be valid, is connected with, and dependent upon, a devise of real estate which is void by the statute 9 George II. c. 36; the devise being the principal, and failing, the accessory must fail with it (i).

Thus, where a testatrix being seised of nine freehold houses, and of other leasehold houses, and of 8007. 4 per cent. Bank Annuities, devised as follows, after the death of a party to whom the houses were given for his life, "I give my nine houses in Vine-street, eight to eight poor people that have paid most and longest to the poor's books in St. Mary Overy's parish, as the books shall prove; the corner house to repair them. And the dividends of 8001. in the 4 per cent. Bank Annuities, at the death of John Bayley, I give to the eight houses for ever, to each house the 41. every year for ever, as the Bank pays the dividend." A bill having been filed, praying that it might be declared, that the bequest of the interest and dividends of the 8007. 4 per cent. annuities, to charitable purposes, was a good and subsisting bequest for the benefit of poor persons of that parish, or for some other charitable purpose, for the benefit of the said parish, and for other directions. The gift of the houses being clearly void, and the inhabitants of those houses being the principal objects of the bounty of the testatrix, and no intention of applying the fund to any other purpose appearing in the will, it was held, that the gift of the stock was void (j).

(i) Attorney General v. Davies, 9 Ves. 535; Chapman v. Brown,

cited 2 Jac. & Walk. 274.

(j) Attorney General v. Goulding, 6 Ves. 410; Adams v Lemberey, 2 Br. C. C. 428.

Again, where a testator devised four houses to the churchwardens and vestrymen of St. Martin's Sarum, in trust for such poor men of that parish as they thought fit, desiring a preference to be given to the descendants of a particular individual, and proceeded "as I intend these four houses to be in the manner and custom of almshouses for men and their wives, I give and bequeath to the churchwardens and vestrymen of St. Martin's Sarum, the sum of 20001. four per cent. government securities, in special trust for them to dispose of the interest in the following manner; that is to say, my will is for them to give or allow to each of the four persons, that they allow or permit to inhabit the four houses, the sum of 131. per annum or 5s. a week to be paid weekly, monthly, or at their discretion; that is for a man and his wife if one of them die, the single one to have 3s. 6d. a week, and not permitted to bring in a second husband or wife." The testator having afterwards placed four of his relations in the houses in question, conveyed them by deed inrolled to trustees, in order that the same might be at all times used as almshouses and occupied by four poor men and their wives, to be chosen as mentioned in the deed, which became void in consequence of the testator's death within twelve months after its execution. An information was filed, praying that the bequest of the 20001. stock might be established, and the fund transferred to the relators to be appropriated according to the intention of the testator, or as near thereto as the circumstances might admit, or otherwise that it might be declared to what extent the bequest was good. It charged, that if so much of the bequest of 20001. stock as related to the persons to be inhabitants of the four tenements was void, yet the plaintiffs were entitled to the benefit thereof for their lives as a personal bounty to them. It was contended, that though the gift of the four houses was void by the statute 9 Geo. II. c. 36, yet that the bequest of the 20007. stock appropriated for the maintenance of the poor men and women, might be supported as not being essentially connected or belonging to it, but as denoting a general intention; which though the rest failed, might be fulfilled. It was

held by the court, that according to the true construction of the will, the intention was to make an endowment of almshouses, that there was no general intention beyond that, and therefore that the bequest so far as it concerned those almshouses, must fail with the object to which it was attached. Lord Alvanley, M. R., said, " The Attorney General v. Goulding (k), is almost precisely in point. I believe I have intimated a doubt upon that case (1), I thought it a more rigid construction of the rules of the court upon charitable bequests, than in prior cases had been adopted. Upon consideration of that case, I agree that it is right; but I do not agree with what Mr. Justice Buller is stated (m) to have said, that the rule of the court to execute the charitable purpose in another way has been varied; I perfectly agree with the rule laid down; but I deny that it has been varied; nor was it necessary to support that decision, that it should be varied; for the ground of it appearing in the report is, that applying the charity to any other object would be contrary to the intention. It is said, an intention to give this provision to any poor men and women may be collected. If I could collect that intention, I would execute it; but I cannot and so it is not enough to say, it is not inconsistent with that intention, or that if the testator could have foreseen the failure of his object, he would have given it to poor men and women without regard to the houses. Perhaps he would, but can I judicially pronounce that he would; or, (for such is the office of a judge) can I fairly infer that he would upon this will? I cannot. An endowment with a restriction as to another wife or husband, an endowment where the conduct

(k) Ante, p. 195.

the cases, that wherever the court had (7) See 3 Br. C. C. 379, 2 Ves. directed the sum given to be applied jun. 388. to a different use, there has been proper ground for the court to say the use to which it has been applied is consistent with the use declared in the will, but there have been subsequent cases which have varied the rule."

(m) 2 Br. C. C. 430. With reference to the question whether the court could apply the legacy of 8001. ante p. 195, to some other matter ejusdem generis, Buller, J. said, "the court has certainly thought it could vary the

use, but the rule may be drawn from