allowing due time for taking the alternative into consideration, that the suspension of their determination is allowed (ƒ).

A college to whose use estates were devised for founding new scholarships, and for accumulating the remainder of the rents for making additional buildings to the college, after the determination of several estates for life, was held not to have accepted the devise by executing a deed and doing other acts for the preservation of the funds, in order to prevent an immediate suit for their application, and by engaging that the funds should be applied according to the trusts of the will; the college having, on an information filed after the death of the last tenant for life, declined to act in the trusts of the will and refused the bequests (g).

An estate being devised to Christ's Hospital, on condition of maintaining six children from the parish of St. Leonard, Shoreditch, and the hospital having taken possession; the rents at first proved insufficient to maintain the number, and the hospital had maintained only three; and an account having been exhibited to the governors, the latter had been satisfied. But upon filing an information, it was found that there had been a mistake in the account, and that the rents had not been expended, although it appeared they were then sufficient to maintain the whole number of children. Lord Thurlow thought, whether the rents were or were not sufficient to maintain the number, the hospital, having taken possession of the estate, was bound to perform the condition; and that they should have considered of that previously to taking possession (h).

The founder of Guy's Hospital, after mentioning a charter of incorporation which he intended that charity should obtain, by his will gave to the president and governors of Christ's Hospital in London, and their successors for ever, an annuity

(f) Attorney General, v. Christ's Hospital, 3 Br. C. C. 165; St. John's College, Cambridge v. Platt, Rep. temp. Finch, 222; Attorney General v. Master of Catharine Hall, Cambridge, Jac. Rep. 392.

(g) Attorney General v. Andrew, 3 Ves. 633. Post, p. 607.

(h) Attorney General v. Christ's Hospital, 3 Br. C. C. 165. See Lord Ewre v. Strickland, Cro. Jac. 240; Brett v. Cumberland, Id. 521.

of 4007., upon condition that his executors and such intended corporation and their successors, should have liberty yearly, and every year for ever, to put into Christ's Hospital four children, to be educated and maintained in the same manner as the other objects of that charity; and it was provided, that if the governors of that hospital refused to admit such four children, then the testator's executors and the said intended corporation were directed to apply the said annual sum of 400l. to the education and maintenance of such poor children in such other school as they should think fit. The governors having accepted the legacy, complied with the condition for more than a century, and afterwards contended, that they were not bound, but were at liberty to abandon the gift, together with the condition annexed to it, whenever they thought fit. Sir J. Leach, M. R. said, "If the annuity were given to Christ's Hospital for such time only as they should continue to act upon the condition, then, indeed, they would be at liberty to retire from it at their pleasure. But here the annuity is given to them and their successors for ever; and having once accepted it, they are for ever bound by the condition. The latter part of the clause, which authorises the executors or the intended corporation to apply the 4001. a-year in another manner, if the governors of Christ's Hospital shall refuse or neglect to act under the condition, is not to be considered as authorising that refusal or neglect, but as a collateral remedy to secure, at all events, the testator's charitable intention" (i).

Where a decree was complained of, because it gave the surplus of the rents of the charity estate, after maintaining a certain number of exhibitions, for the benefit of Baliol College, which was constituted a trustee by the testator, Lord Hardwicke thought that the college might be right in insisting upon some advantages to themselves, as without it there might have been a difficulty in prevailing upon the college to accept a bye foundation to entertain six or more members who had received their first education for two or three years in a

(i) Attorney General v. Christ's Hospital, 1 Russ. & M. 626.

Scotch university, professing principles different from that of the college (k).

Where an agreement was made by a college with a descendant of the testator, not conformable to his will, the court declared such agreement void: for though the college might have waived the gift, they could not alter it by any agreement, because in effect that would have made them founders, and to hold the charity upon their own terms (1).

A testator devised 50l. per annum for a lecturer in polemical or casuistical divinity, so as he was a bachelor or doctor in divinity, and fifty years of age, and would read five lectures every term, and at the end of every term deliver four copies of the same to be kept in the university; and in default of such a lecturer, he gave the 50l. to

College, in Oxford. Upon an information, the university of Cambridge, with the consent of the testator's heir-at-law, wanted to modify the gift by making a man of forty years of age capable of the salary, and requiring three lectures only every term, and the delivery of four copies of them once a year; but the court, though no one opposed the application, refused to intermeddle, and said that they should be held to the letter of the charity, and that the heir had no power to alter the disposition made by his ancestor (m).

A corporation which was bound to pay out of the revenues of charity lands a certain annual sum to a college, in the year 1607 conveyed to the college lands then of that annual value, in satisfaction of such annual sum. The lands so conveyed, by accidental circumstances became of much greater value in proportion than the lands which were reserved by the corporation for the other purposes of the charity, yet the court would not, after the lapse of two centuries, undo an arrangement which was perfectly fair at the time between the contracting parties, and had the approbation of the executor of

(k) Attorney General v. Baliol College, Oxford, 9 Mod. 409, 5th ed.

(1) Attorney General ex rel. St. John's College, Cambridge, v. Sir John Platt, Finch. R. 221. See

ante, pp. 283, 284; Attorney General v. Hart, Prec. Ch. 225.

(m) Attorney General v. The Margaret and Regius Professors in Cambridge, 1 Vern. 55.

the founder, and had become unequal only from accidents arising out of the course of time (n).

SECTION III.

Of the Doctrine of Cy-pres or Approximation to the

Donor's intention.

1. Where the particular objects named have failed or cannot take.

2. Where the Fund is more than sufficient for the objects specified, p. 613.

3. Of the application of the doctrine of Cy-pres to the regulation of Grammar Schools, p. 629.

4. When the doctrine of Cy-pres will not be applied, p.648. 5. Of the settlement of a scheme for the application of Charitable Funds, p. 650.

6. Of the apportionment of Charitable Funds, p. 656.

1. Where the particular objects named have failed or cannot take.] The doctrine of cy-pres, that is, the rule to execute the charitable intention as nearly as possible, in its application to charities, was formerly carried to a most extravagant length (o); but this distinction now prevails, that the court will not decree the execution of a trust of a charity in a manner different from that intended, except so far as it is seen that, though the intention cannot be literally executed, another mode may be adopted consistent with the general intention, by which it may be carried into effect in substance, without infringing upon the rules of law. If the mode pointed out by the donor becomes, by subsequent cir

(n) Attorney General v. Pembroke Hall, 2 Sim. & Stu. 441.

(0) 2 Ves. jun. 380; 3 Ves. 220, 141, 633, 714; 4 Ves. 14.

cumstances, impossible, the general charitable object is not to be defeated if it can be attained (p).

Where charity is the substance of the gift, and the particular object fails, the court will effectuate the gift to charity by providing another mode.

Thus a testator, by a codicil to his will, in 1691, directed that the residue of his personal estate should be disposed of by his executors for such charitable and pious uses as they in their discretion should think fit, but recommended to them to lay out the greater part for the advancement of the Christian religion, and appointed three executors, who afterwards laid out 5400l., which was considered by them as the principal part of the testator's personal estate, in the purchase of the manor and lands of Brafferton, in the county of York, with a view to settle them, so that the income might be for ever applied to the advancement of the Christian religion. They then directed the whole annual income of the manor and lands to be applied towards the propagation of Christianity among the natives in or near New England, in America, and for advancing the knowledge of that religion in Virginia; which application to charity was confirmed by a decree of the court, accompanied with a direction that part of the rents should be applied by the corporation for propagating the Gospel in New England, and the parts adjacent in America, towards instructing the infidels in Virginia in Christianity, subject to the regulations of the Bishop of London, &c. The information insisted, that by the declaration of independence by the United States, it became improper to transmit any longer the rents of the estate for the charitable purposes; and it therefore prayed, that the rents then due, and the accruing rents, might be applied in some other manner in this kingdom, or in some part of his majesty's dominions, for the advancement of the Christian religion; and that the sum of 13,8491. 2s. 10d.

(p) Attorney General v. Boultbee, 2 Ves. jun. 380, 387; S. C. 3 Ves. 220; Attorney General v. Whit

church, Id. 141; Attorney General v. Stepney, 10 Ves. 22.