church of the united parishes which they were bound to defray (c).

The court will direct a scheme making an unfair division of property between the objects of the donor's bounty to be corrected.

By indentures of lease and release, dated in August, 1635, Sir John Hayward, of Rochester, in Kent, conveyed a manor and other premises in the isle of Sheppey, to the use of himself in tail, with remainder to such uses as he should by will or deed appoint; and in default thereof upon trust, to make sale thereof, or otherwise convey and settle the same for the erection of workhouses, to set the poor on work, and otherwise for the relief of the poor in such parishes, and in such manner as four trustees therein named, or the survivors or survivor of them, their heirs or assigns, should think fit, so as the parish of St. Nicholas, in the city of Rochester, wherein the said Sir J. Hayward then dwelt, should be one of the said parishes. The estate having been sold under the direction of the Court of Chancery, it was held that a scheme carried into effect under the direction of the court, by which a small part of the income was devoted to St. Nicholas, and the chief part of it was to be applied for the support of almshouses and a school in the parish of Crediton, in Devonshire, was not conformable to the trusts; and although the court thought it not right that the charity should have been originally confined to two parishes, yet in consequence of the difficulty of altering the application after what had taken place, an equal division was directed, and so much was appropriated to the benefit of the parish of St. Nicholas, as with what had been before set apart for it, would make one half of the whole property, and the rest was to be applied to the charity at Crediton (d).

Where the distribution of the funds by the original gift is in proportions which altogether exhaust the income of the charity at that time, the distribution of the revenues when

(c) Attorney General v. Virian, 1 Russ. 226, 234.

(d) Attorney General v. Buller, Jac. Rep. 407.

augmented, must be in the same proportions, by making an addition to the share of each (e).

Where a specific sum is given to one charity out of property devoted to charitable purposes, and the remainder of such property to another charity, the first is not entitled to participate in the increase of the income; although where the whole income is given in certain proportions to the whole rent, each is entitled to share in such increase (ƒ).

Thus, in the year 1602, a testator devised a messuage in Southwark, then let at the yearly rent of 107. to the parson and churchwardens of St. Mary Magdalen, London, and their successors, upon trust, to pay yearly for ever unto the parson and churchwardens of Walton, in Lancashire, and to their successors, 54s., viz. 52s. for buying bread for the poor, and 2s. to the churchwardens for their pains therein; upon further trust to pay out of the rents of the said premises, to two honest men of the town of Bootle, 30s., to provide a dinner every St. Thomas's-day, before Christmas-day, for the householders and married people of that town, and 30s. for a supper on the same day, for all the youth and young people of the same town. The testator then gave 54s. to another charitable purpose, and the other 42s. of the said yearly rent of 101., he referred "to the good discretion of the said parson with the common council of the said parish, and the churchwardens, whether to dispose of to the poor of the said parish, or towards paying of fifteenths for such as were not able to pay, being no subsidy people." There being an increase in the value of the property, an information was filed against the rector and churchwardens of the parish of St. Mary, for a division of the present and future rents between the said parishes of St. Mary Magdalen, Walton, and Bootle. Sir C. Pepys, M. R., decided that the gift of 42s.

(e) Attorney General v. Tonna, 2 Ves. jun. 1; S. C. 4 Br. C. C. 103. Ex parte Berkhampstead Free School, 2 Ves. & B. 139. See ante, p. 545,

615.

548,
(f) Attorney General v. Solly, 5

Law Journ. N. S. Chanc. 5. 17th November, 1835. See Attorney General v. The Skinners' Company, 2 Russ. 443; ante, p. 578, where an apportionment was not directed.

was not as had been contended, a gift of the residue, but was a proportionate part of the rent of 101. a-year devised by the testator, for the several charitable purposes mentioned in his will; and that the whole surplus arising from the increase of the rent, was to be applied in the proportions designated by the testator, to the several objects of charity, so far as the same were capable of being carried into effect, and as nearly as might be, where it became necessary to modify the specified objects of the charity. A reference was directed to the master, to settle a scheme for the several charitable bequests, with liberty to state special circumstances (g).

By 3 Geo. IV. c. 72, s. 10, in case of the division of any parish into separate parishes for ecclesiastical purposes, or into separate districts, or chapelries, in which select vestries shall be appointed by the commissioners for carrying into execution the acts for building additional churches, under those acts (h) all the members of the select vestry of the original parish, who shall reside in or belong to the district or division of the original church or chapel of the parish or place, shall continue to act as the vestry of such district or division, in ecclesiastical matters, "or in the distribution of any proportion of any bequests, gifts, or charities, which may, under the provisions of that act, be assigned to any such district or division"; provided that no member of any select vestry shall, after such division, act in any ecclesiastical matters, except such as relate to the division in which he shall reside; and if by reason of such division, a sufficient number of such members of select vestry shall not remain resident in the division wherein the original church or chapel shall be situate, according to the proportion fixed by the commissioners, (regard being had to the population of such division, and its relative proportion to the population of the whole parish or place,) all such deficiencies shall be filled up as vacancies have before been filled up

(g) Attorney General v. Barham, 4 Law Journ. N. S. Chanc. 128; Thetford School Case, 8 Rep. 130 b; ante,

545, 546.

(h) 58 Geo. III. c. 45; 59 Geo. III. c. 134.

therein; provided that no person shall vote in supplying such deficiencies, unless resident within the division for which the members are to be chosen; provided that the persons chosen, shall not thereby be members of the vestry for any other purposes than such as relate to the ecclesiastical affairs of the division for which they shall be chosen, or for the distribution of any charitable gifts therein; provided that all the members of the select vestry of any such parish or place, resident in any other divisions thereof, shall be members of such vestries as shall be appointed under the acts, for the divisions in which they shall reside.

The 11th section of stat. 3 Geo. IV. c. 72, enacts, that "it shall be lawful for the said commissioners in every case in which they shall be of opinion that it will be expedient to divide, or in which the said commissioners shall have divided any parish or place, into two or more distinct and separate parishes, district parishes or chapelries, for ecclesiastical purposes, under the provisions of the acts therein recited (i), to apportion, if the commissioners shall, in their discretion, think it expedient, among such separate divisions of any such parish or place so made separate or district parishes or chapelries, for ecclesiastical purposes, any charitable bequests or gifts which shall have been made or given to any such parish or place, or the produce thereof; and in any such case, to direct that the distribution of the proportions of such bequests or gifts, or the produce thereof, as shall be so apportioned to any such separate divisions of any such parish, shall be made and distributed by the spiritual person serving the church or chapel of any such separate divisions, or the church or chapel wardens or select vestry of any such separate divisions, either jointly or severally, as the commissioners may in their discretion. (regard being had to the nature of the bequest or gift, and the application thereof) think expedient," and also to apportion debts charged on the church rates; all such apportionments to be registered in the registry of the diocese in which

(i) 58 Geo. III. c. 45; 59 Geo. III. c. 134.

the parish or place shall be locally situate, and the duplicates thereof deposited with the churchwardens of each such separate districts as aforesaid, in respect or in relation to which any such apportionments as aforesaid shall have been made.

SECTION IV.

Of Bequests to Charity void for uncertainty.

We have already seen (j), that when an undefined portion of a fund is given to a charity void by the stat. 9 Geo. II. c. 36, and the residue of such fund for charitable purposes, which, if standing alone, would be legal, but it cannot be ascertained how much was intended, or would be required for the illegal object, the gift will fail altogether; because, the gift was of a surplus without the means of ascertaining what the amount of it would be.

Where a trust is so general and indefinite that it cannot be ascertained, the consequence is, that the fund must either go as an absolute gift to the individual selected to distribute it, or such individual will be a trustee for the next of kin; if the testator meant to create a trust, and the trust is not effectually created, or fails, the next of kin must take; and on the other hand, if the party selected to make the distribution is to take, it must be upon the ground that the testator did not intend to create a trust, but to leave it entirely to the discretion of the party to apply the fund or not.

If a testator who intends to create a trust, and not to make an absolute gift, does not effectually create or express any trust, or the trust fails, the next of kin are entitled. Where upon the face of the will there is a plain declaration that the person to whom the property is given, is to take it in trust, although the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, such person is a trustee, if not for those who were to take under the will, yet for the next of kin (k).

(j) Ante, pp. 200-203.

(k) 10 Ves. 435, 537.