tention to the Mortmain and Charitable Uses Act 1891 (54 & 55 Vict. chap. 73), and in the course of subsequent correspondence pointed out that the home must be sold under § 5, unless a retaining order under § 8 was obtained. The question of applying for a retaining order was accordingly carefully considered at the annual meeting in March, 1912, and at the subsequent meeting of the committee in June, 1912, it was proposed, seconded, and carried unanimously that the home should be closed and the solicitors instructed to arrange for selling it as soon as possible. The home was subsequently sold on May 27, 1913, for £450, which was applied under a cy pres scheme. On July 16, 1913, the executor issued this summons to determine whether the £120 annuity was still subsisting or had ceased and determined. The court said: "There is distinct authority, and there are others in the books, that the mere fact that a gift obviously intended to be charitable cannot be applied for the specific purpose referred to by the testatrix is in itself insufficient to prevent the general charitable intention prevailing. The only question really upon this summons which involves any difficulty at all is whether, this being an annuity and the testatrix having said that it is to be paid to the society for the maintenance and expenses of maintaining this home, a gift over on the final expiration of the trust to pay that annuity is a sufficiently clear indication that this charitable intention is to cease to operate if, for any reason at all, this home cannot be continued. It seems to me quite clear that if the home ceased to be continued as part of this trust, by reason of its having been taken over compulsorily under the Lands Clauses Consolidation Act 1845, or under any compulsory powers of that nature, the testatrix's intention would not be defeated, and the only remaining matter is whether, having regard to the fact that the society itself has not thought fit or been able to apply for permission under the Mortmain and Charitable Uses Act 1891, to continue this home, the gift over operates in respect of

this fund. Now it is to be observed that the testatrix gives the house absolutely to the society, and this annuity is connected with the gift of this leasehold house, and, taking the two gifts together, I think on the whole, although there is some doubt about it on the language, that the testatrix herself has sufficiently indicated her intention to give an annuity charged upon capital for the benefit of this society, and that if they cannot apply the annuity in the precise way indicated by the testatrix that is not sufficient to deprive this gift of its general charitable nature. . . The estate may, therefore, be realized and paid to the society on their undertaking to apply for a scheme." See also Lyons v. Advocate-General (1876) L. R. 1 App. Cas. 91.

But in Clark v. Taylor (1853) 1 Drew. 642, 61 Eng. Reprint, 596, it was held that a gift to a private charity which ceased to exist after the testator's death could not be disposed of as a charitable gift cy pres, but fell into the residue. It appeared in that case that the testator's will contained the following gift: "And I give to the treasurer for the time being of the Female Orphan School in Greenwich aforesaid, patronized by Mrs. Enderby, the sum of £50 for the benefit of that charity." It appeared by the evidence that Mrs. Enderby named in the will was a lady of fortune, who had been in the habit, for many years previous to and after the year 1839, of spending her own money in the education and maintenance of several female children, sometimes in one house, sometimes in another, in Greenwich, which she rented at her own expense, sometimes at her own house. There never was any trust, or deed of endowment, or any treasurer, the school being simply a school voluntarily kept up by Mrs. Enderby at her own expense. The testator died in 1840, and the school was discontinued in 1846. The court said: "The question is whether the gift in this will is to be considered as a gift intended for charitable purposes generally, or whether it was simply intended for the benefit of a particular private charity.

Now, there is a distinction well settled by the authorities. There is one class of cases in which there is a gift to charity generally, indicative of a general charitable purpose, and pointing out the mode of carrying it into effect; if that mode fails, the court says the general purpose of charity shall be carried out. There is another class in which the testator shows an intention not of general charity, but to give to some particular institution; and then, if it fails because there is no such institution, the gift does not go to charity generally; that distinction is clearly recognized; and it cannot be said that, wherever a gift for any charitable purpose fails, it is nevertheless to go to charity. In many cases it is difficult to see to which particular class the case is to be referred, and this is, to a certain extent, one of such cases. The testator seems to have assumed that this school was conducted as charity schools usually are, by means of the usual machinery, with a treasurer or some other officer appointed, into whose hands he wished the money that he left to be paid. Did he intend the money to be paid to provide for the education of female children generally, or did he intend merely to provide for the education exclusively of such as were under the care of Mrs. Enderby? . . . A particular school appears to have been intended. If no such school had existed, the testator could not have had the intention to benefit the particular school, and might have intended general charity; but here, upon the facts, the testator may have personally seen and known and approved this school. . . . Now, there having been such a school as the testator describes, it being a mere private school maintained by the beneficence of Mrs. Enderby, I cannot say that the legacy given to it is to go to any other institution. The gift, therefore, has failed, and falls into the residue."

And in the case of Re White (1886) L. R. 33 Ch. Div. 449, a bequest was regarded as lapsed where the object of the gift had failed. It appeared that White, the testator, had be

queathed £1,000 consols to the master, wardens, and court of assistants for the time being of the Worshipful Company of Tin-plate Workers of the city of London and their sucessors forever, on trust, as soon as conveniently might be after his decease, and when a proper site could be obtained for that purpose, by and with the proceeds of the said sum of £1,000 consols, to erect and build in such part of England as they might think fit, almshouses for the use, first, of poor liverymen of the company, then of freemen of the company, and lastly for poor men of the trade of a tin-plate worker. He further declared: "I have made the before-mentioned bequest and disposition under the anxious hope and expectation that some other benevolent person or persons more wealthy than myself and actuated by the same charitable feelings, will hereafter sufficiently endow the said almshouses, so that the same may truly, under God's blessing, become not only the habitation and refuge, but support and comfort in their declining years, of those helpless persons for whom I have designed the same." His executors transferred the £1,000 consols into court under the Trustee Relief Act and the Charitable Trusts Act 1853. Sarah Dale, the tenant for life, died on the 22d of February, 1882, whereupon the Tin-plate Workers' Company, acting under the direction of the court, proceeded to make endeavors, by advertisement and otherwise, to obtain a site for the almshouses, but these endeavors proved unsuccessful, and there appeared to be no reasonable prospect of any such site being obtained. It appeared, moreover, that even if a site were obtained the company could not, having regard to their very small income, provide sufficient funds for the endowment and maintenance of the almshouses. The court said: "I find, on examining into the matter, that there is no ground upon which the doctrine of cy pres can be applied to this legacy. The rule stated in all the cases is that where there is a general gift to general purposes of charity, that gift may be sustained on the doc

trine of cy pres, although the particular objects fail or are no longer in existence. . . The testator has given £1,000 consols to be applied in erecting almshouses on a site to be obtained for the purpose. It appears that no site can be obtained, and that even if it could be the £1,000 is not enough for the purposes the testator has indicated. The persons who are to have the enjoyment of the charitable gift are relative to the original gift. The testator says: 'I will have almshouses erected when a site can be found, and if they are erected certain benefits are to follow.' No land can be obtained, so they cannot be built. There is no person in existence to whom to apply the money. To apply it to poor tin-plate workers is out of the question. What, then, is to be done with the fund? First, it was suggested that it should be handed over to needy tin-plate workers. That is out of the question. Then it was suggested that it should be handed over to the Charity Trustees for general charitable purposes. But even if I were to give it to the Charity trustees they could not buy land with it, or apply it to the purposes expressed in the testator's will. In my opinion the fund must be deemed to remain part of the testator's estate, which he has left to be applied for purposes which it has become impossible to accomplish. The gift, therefore, has lapsed, and the fund goes to the residuary legatees."

.

In New v. Bonaker (1867) L. R. 4 Eq. 655, an interesting case, though not strictly within the scope of this annotation, it was held, owing to the peculiar circumstances rendering the case an exceptional one, that the object of the trust had failed and that the fund fell into the residue of the estate. It therein appeared that a British subject had given a fund to the President and Vice President of the United States, and to the governor of the state of Pennsylvania for the time being, to be by them holden on trust to lay out and invest $2,000, part thereof in the purchase of freehold land in the state of Pennsylvania, and to accumulate the rents thereof, and

the interest and dividends of the remainder of the said stock from time to time, to be invested in other like stock in the nature of compound interest, until the same should amount to $100,000, and then to be applied, together with the estate so directed to be purchased, in endowing a college. for the instruction of youth in the state of Pennsylvania. And the testator declared his will to be, that moral philosophy should be taught therein, and a professor engaged who should inculcate and advocate the natural rights of the black people of every clime and country, until they should be restored to an equality in civil rights with their white brethren throughout the Union. The testator bequeathed the residue of his estate to his brothers and sisters, and appointed his two brothers executors of his will. The court said: "This is a very extraordinary and exceptional case. It is a trust for the purpose of founding a college in Pennsylvania for the instruction of youth, with a superadded direction that moral philosophy should be taught therein, and that there should be a professor engaged who should inculcate and advocate the natural rights of the black people, of every clime and country, until they be restored to an equality in civil rights with their white brethren throughout the Union. This particular object of advocating the rights of the black people was, I believe, the prevailing motive of the testator in founding the college; but it seems that this intention cannot be carried into effect, because the equality of the black people has already been substantially established throughout the Union. This, however, goes only to the professorship, and if it were an educational bequest in this country it would not fail on account of part of the object being impracticable. It is said that there is no reason for applying a different rule when the gift is for an educational purpose in a foreign country; but this is altogether an exceptional case. First, it is a gift to the President and Vice President of the United States, and to the governor of Pennsylvania.

for the time being. Now, it is an American charity, and therefore the President and Vice President of the United States are, in fact, representing the government of the country. I consider, therefore, that it is a gift to the American government, and I can look upon it in no other light. . . . It now appears that those trustees have refused to come forward and claim the fund, and consequently, as the matter now stands, the fund is useless. The question now is, whether, as the American government has refused to come forward, I am to force the trust upon them. It is said that a charitable bequest must never fail for want of a trustee, and that is perfectly true, but what I am urged by the Attorney General to do is to force on the government of America the foundation of a charity which they will not have. The will directs that the college is to be founded in Pennsylvania, and the governor of Pennsylvania refuses to accept the trust; therefore, what I should have to do would be to settle a scheme for the institution of this charity in Pennsylvania, but I have no power to make the governor accept it. It is quite impossible to settle such a scheme; therefore I come to the conclusion that this is a case in which the charitable object altogether fails, and the funds will fall into the residue."

Again, in the case of Re University of London Medical Sciences Institute Fund [1909] 2 Ch. 1-C. A., it was held, under the circumstances of the case, that money which had been transferred to trustees by the executors in accordance with the provisions of a will had been bequeathed conditionally, and that where the purpose had failed the money should be returned to the executors. In that case it appeared that in the year 1902 or 1903 a scheme was projected by the University of London for establishing an Institute of Medical Sciences, the precise nature and object of which were set forth in various printed documents. An appeal was made to the public for pecuniary support, and considerable sums were promised, some of them being paid to the treasurers of the fund that was being raised to

carry out the projected scheme. The fund was entitled, "The Institute of Medical Sciences Fund, University of London." The testator subscribed to the fund, and by his will, made on April 18, 1905, he bequeathed a legacy in these terms: "I give £25,000 to the Institute of Medical Sciences Fund, University of London." Subsequently the scheme was found to be impracticable and was abandoned, and it was decided that moneys given should be repaid to the donors or representatives of deceased donors. With respect to the legacy involved, it was suggested on behalf of the Attorney General that the money had been definitely devoted to a charitable purpose, and ought, therefore, to be applied cy pres, the object to which it was originally devoted having failed. The court, however, said: "I cannot accede to that suggestion. There is not one word in the will upon which to found the theory of the testator having any general charitable intent, or any intention to contribute to any general or other purpose of charity save only the particular scheme of the projected institute. . . . In my opinion the bequest of the legacy in question 'to the Institute of Medical Sciences Fund, University of London' was not, in the circumstances, a final dedication thereof to charity. Its application to a charitable purpose was only contingent and dependent upon the scheme for the institute proving to be feasible and being carried out. There was no more a final dedication to some or any charitable purpose in reference to the legacy than was the case with respect to the contributions of the living donors, and that contributions towards a scheme which it is found cannot be carried out are returnable to the donors is a matter of course. Here there was a condition implied and well understood by all parties which cannot be fulfilled, and I must hold that the legacy given for the purposes of a scheme which has proved impracticable and has been finally abandoned, and that was given for no other purpose, fails altogether, and as it has been already handed over to the plaintiffs it must be repaid by them."

This conclusion was affirmed on appeal.

Another case (Re Prison Charities (1873) L. R. 16 Eq. 129), although it does not directly involve the question under annotation, may be referred to in this connection as showing the tendency of the English courts to apply a fund, though the particular purpose for which it was created has ceased to exist. In that case it appeared that certain charitable trusts declared a century or two before the trial for the benefit of poor prisoners in the city. of London had lapsed because of the abolition of the law of imprisonment for debt and the closing of the debtors' prisons. The Attorney General had carried into chambers a scheme for which an order was made by which he proposed that the whole of the funds should be treated as one charity, and be applied to the building, establishment, and maintenance of a school for the reception, education, training, clothing, and maintenance of children. of both sexes of persons convicted of crimes and undergoing the sentences which may have been pronounced on them. To this scheme, objections were taken by the existing trustees of several of the charities, each of whom, besides opposing the Attorney General's scheme, proposed modes in which, as they insist, the charity funds, either in whole or in part, ought to be applied. The court disapproved of the scheme of the Attorney General, saying: "The main objection to the scheme of the Attorney General ap

pears to me to be that it departs entirely from the intention of the founders of the charities, and that it is not shown, and I have no reason for thinking, that, although the funds can no longer be applied for the relief of poor prisoners for debt, they may not be applied usefully and beneficially and charitably, for the relief of adult sick and poor persons the misery and want of whose condition were undoubtedly the inducement of the several donors to make their several bequests. Nor do I doubt that such an application is that which the rule of the court prescribes in such cases. Upon the whole, I am of opinion, for the reasons I have given, that I am not at liberty to adopt the scheme of the Attorney General in its present form; and as the suggestions made by the several opponents of their views as to the proper application of the charity funds are not now before me, I have purposely forborne to express any opinion upon them." The following were minutes of the order: This court being of opinion that, in settling a scheme or schemes for the future management and regulation of the funds belonging to the said charitable bequests for prisoners, such funds ought not to be applied towards the establishment of an industrial school for children of convicted persons. Order that it be referred back to chambers to consider a scheme or schemes in pursuance of said order dated the 8th of May, 1871.

H. C. J.

V.