maintenance of the said poor in the said almshouse;" the heir of the testator paid 107. yearly for the maintenance of the poor at the almshouse, and on the expiration of the former lease, demised the land for 40l. per annum. On a reference by the lord keeper to the judges, whether if one devise the rents of his lands to a charitable use, the land itself did pass, they certified their opinions, that by a devise of the rents of the lands to a charitable use, the land itself did pass; for when one devises the rent of his land to a charitable use, it shall be taken largely for a devise of the rent then reserved, or afterwards to be reserved upon an improved value (n). For a gift of the yearly value is equivalent to a gift of the rents and profits; and a gift of rents and profits is equivalent to a gift of the lands themselves; and consequently the increase of the rents and profits will belong to those to whom the yearly value is given, alias the rents and profits, alias the lands themselves (o). Where the case depends altogether upon the language of a will, and it is necessary to determine whether the surplus rents, after satisfying the purposes of the will, are to be at the absolute disposition of the corporation in which they are vested, or whether the corporation are intended merely to have a qualified disposition of the surplus rents to purposes of charity only, it is necessary to weigh every word of the will with the utmost attention, in order to collect from the whole context, the real intention of the testator (p). The rule of law is, that if it appears upon the face of the instrument that the whole rents of an estate are given for charitable purposes, the subsequent increase of the rent beyond the sums specified shall be considered as devoted to the charitable purposes expressed; and also if, without any such apportionment of the whole of the rents of the estate at the time when the grant was made, there be upon the face of the instrument an express declaration that the whole of the profits of the estate shall be applied to charitable (n) Case of Kennington Hastings, Duke, 71, (623). (0) 2 Russ. 435. (p) Attorney General v. Skinners' Company, 5 Madd. 204. purposes, all the profits, how much soever they may be increased at any future time, are applicable to those charitable purposes (q). One of the earliest cases upon this subject, is Hynshaw v. The Corporation of Morpeth (r), in which King Edward VI. gave land to the mayor and commonalty of Morpeth, of the annual value of 201. per annum, to maintain a schoolmaster there. The value of that land increased to 1007. per annum, and the corporation continued to bestow on the schoolmaster only the 201. per annum, according to the value at the time of the first gift; and the lord keeper said, that the not bestowing of the increased value of the land given, was a breach of trust in the corporation, if no other use be expressed in the letters patent. So it is laid down, that if land of the value of 31. per annum be given to repair highways, and it afterwards increases in value to 117., the whole of it must be applied in the same manner (s). If lands of the value of 31. per annum be given to maintain a schoolmaster, and in the deed it is expressed that the said 37. shall be only employed to maintain that use, and no other use is expressed in the deed, and afterwards the land increases to a greater value, all the increased rent shall be employed for that charitable use, because it doth not appear that the donor had any intention that the profits of his land should be employed to any other use, and at first he gave so much as the land was worth; and the commissioners might order the increased value to be applied to the charitable use (t). A gift of the whole fund in fixed proportions to different objects of the charity, vests the whole in such objects, in such proportions, to the exclusion of the trustees through whose instrumentality the charitable purpose is to be effected. Thus in the case of Thetford School, lands were devised to trustees for the maintenance of a preacher four times a year, a master and usher of a school, and certain poor; and cer (q) Attorney General v. Skinners' Company, 5 Sim. 614, 615. (r) Duke, 69, (242). (s) Eltham v. Warreyn, Duke, 67, (641). (t) Sutton Colefield Case, Duke, 68, (642). tain sums were given to each (i. e. preacher, master, usher, and poor), amounting to 351. a year, the whole of the rents and profits of the land at the time of the devise. It was held, because the whole rents were given to the objects of the donor's bounty, that the increase of the rents and profits was for that reason to be divided among them; and that the fixed payments specified should not limit the amount of the shares, though it ascertained the proportions in which those shares were to be received by them (v). (v) Case of Thetford School, 8 Rep. 130 b, 131 b. As this case is of frequent reference, it is here stated verbatim. Upon a private bill exhibited in the parliament for the erection of a free-school, maintenance of a preacher, and of four poor people scil. two poor men, and two poor women, according to the will of Sir Thomas Fulmerstone, Knt. a question was moved by the Lords, and was such: land of the value of 351. anno 9 Eliz. reginæ, was devised by will in writing to certain persons and their heirs, for the maintenance of a preacher four days in the year, of a master and usher of a free grammar-school, and of certain poor people; and a special distribution was made by the testator himself, in the same will, amongst them, of the revenues scil. to the preacher a certain sum, and certain sums to the schoolmaster and usher, and to the poor people, amounting in the whole to 351. per annum, which was the yearly profit of the land at that time; and afterwards the lands became of greater value, viz. of the value of 100l. per annum. Now two questions were moved, 1st, whether the preacher, schoolmaster, usher, and poor should have only the said certain sums appointed to them by the founder, or that the revenue and profit of the land should be employed to the increase of the stipend of the preacher, schoolmaster, usher, and poor? 2ndly, if any surplusage remained, how it should be employed; and it was resolved, on hearing of counsel learned on both parts, several days at Serjeants' Inn, by the two chief justices and Walmsley, justice (to whom the lords referred the consideration of the case), that the revenue and profit of the said land should be employed to the increase of the stipend of the preacher, schoolmaster, &c. and poor; and if any surplusage remained, it should be expended for the maintenance of a greater number of poor, &c., and that nothing should be converted by the devisees to their own uses. So in the case in question, where lands in Croxton, in the county of Norfolk, were devised by Sir Richard Fulmerstone to his executors, to find the said works of piety and charity, with such certain distribution as is aforesaid; and now the value of the manor was greatly increased, that it shall be employed in the performance and increase of the N N The principle of the Thetford School case is, that where there are words that might have been interpreted as limiting the extent of the benevolent purpose had they stood alone, yet where they are coupled with other words which show such benevolent purpose to operate to the extent of the whole fund, the effect of the former words will not prevail (u). In that case, the circumstance that the testator had given the whole of the value at the time of the gift, was considered said works of piety and charity instituted and erected by the founder: for it appears, by his distribution of the profits, that he intended the whole should be employed in works of piety and charity, and that nothing should be converted to the private use of the executors or their heirs. And this resolution is grounded on evident and apparent reason: for, as if the lands had decreased in value, the preacher, schoolmaster, &c. and poor people should lose; so when the lands increase in value, pari ratione they shall gain. And they said, that this case concerned the colleges in the Universities of Cambridge and Oxford, and other colleges, &c. : for, in ancient time, when lands were of small yearly value, victuals then being cheap, and were given for the maintenance of poor scholars, &c., and that every scholar &c. should have 1d. or 1d. ob. a day, that then such small allowance was competent in respect of the price of victuals and the yearly value of the land; and now the price of the victuals being increased, and with them the annual value of the lands, it would be now injurious to allow a poor scholar 1d. or 1d. ob. a day, which cannot keep him, and to convert the residue to private uses, where in right the whole ought to be employed in the maintenance or increase (if it may be) of such works of piety and charity which the founder has expressed, and nothing to any private use: for every college is seised jure collegii, scilicet, to the intent that the members of the college, according to the intent of the founder, should take the benefit, and that nothing should be converted to private uses. Panis egentium (Duke, 72; Herne, 80; Co. Litt. 342; 4 Rep. 106 a) vita pauperum, et qui defraudat eos homo sanguinis est. And afterwards upon conference had with the other justices, they were of the same opinion, and according to their opinions the bill passed in both houses of parliament, and afterwards was confirmed by the king's royal assent. Note, reader, there is a good rule in the act of parliament called Statutum Templariorum; Ita semper quod pia et celeberrima voluntas donatorum in omnibus teneatur et expleatur, et perpetuo sanctissime perseveret.—Thetford School Case, 8 Rep. 130 b, 131 b; S. C. Poph. 6, 7; Moor, 594; Cro. Eliz. 288; Duke, 78-80. (u) Attorney General v. Painter Stainers' Company, 2 Cox, 55. as evidence of his intention that the whole value of the land, at any future time, should be applied to the same purposes, upon two grounds; first, because no other trust was expressed in the instrument, and, secondly, because the whole value of the land had been given by the instrument itself, for the particular purposes therein mentioned (w). But the doctrine established by that case has been said to have never been applied, except where the value of the lands, or what was represented to be the value at the time of the gift, had been distributed (x). Lord Brougham said, "the Thetford case goes on this principle, that where nothing is said of surplus (for it is only in cases where nothing is said that the question can arise), it may be safely assumed that it is given to the charity out and out, and not to the trustees, if it is exhausted by the gift to that charity. Suppose, for instance, as in the Thetford School case, I give land to the amount of 201. by the year, (stating the revenue,) to A. and B., in trust for the charity C.; if I give 157. to one, 31. to another, and 27. to a third master or other party in the charity, and will and declare that those three sums of 151. a-year, 31. a-year, and 21. a-year respectively, shall at all times be paid to such persons; as those all taken together amount to 201., I must be taken to give all that to the trustees A. and B. for the sole use of the charity. The rule of the Thetford case under such circumstances is this, that this exhaustion of the fund indicates the founder's intention that the whole shall be charity fund, and none should be beneficiary to the trustees. It disposes, therefore, of the whole, and raises no implied trust quoad the surplus in the trustees of the school; it disposes of all possible surplus, and leaves no question of this description ever in such a case to arise. But it is very different when, instead of giving 157. 31. and 21., I give 15l. and 31., and leave 27. unappropriated. There the rule of the Thetford case does not apply at all; there you have given 181. out of the 201.; and the whole argu (w) See 2 Russ. 433. General v. Mayor of Bristol, 2 Jaç, (x) Per Lord Eldon, in Attorney & Walk. 332.. |