purposes, the residue ought to be employed under this last direction; viz. for charitable purposes generally. I have considered whether that can be ascertained by a reference to the Master, to see, how much would have been sufficient for this chapel: but upon consideration, it is impossible to give any direction that would not be vague and indefinite, to a degree almost ridiculous: an inquiry, what they might have employed for building a chapel without knowing what kind of chapel: the testatrix having given no ground to ascertain what kind of chapel; no locality; it is impossible to frame any direction, that would enable the Master to form any idea upon it. If she had even pointed out any particular place, that might have furnished some ground of inquiry, as to what size would be sufficient for the congregation to be expected there. But this is so entirely indefinite, that it is quite uncertain what the residue would have been, and therefore it is void for that uncertainty. She had no view to any residue, but a residue to be constituted by actually building a chapel. She contemplated no residue but with reference to that. It is impossible to ascertain it in the only manner in which she meant it to be ascertained. It is impossible for the Court to apply it. Therefore the whole of the disposition is void."

2. Of those cases void for the uncertain or indefinite character of the charitable purpose expressed by the testator, the first case is Browne v. Yeale.(y) There Ralph Bradley by will, in 1788, directed the proceeds of certain trust monies to be from time to time for ever applied by his trustees, "in the purchasing of such books as, by a proper disposition of them under the following directions, may have a tendency to promote the interests of virtue and religion, and the happiness of mankind, the same to be disposed of in Great Britain, or in any other part of the British dominions; this charitable design to be executed by and under the direction or superintendency of such persons, and under such rules and regulations, as by any decree or order of the High Court of Chancery, shall from time to time be directed in that behalf:" and Lord Thurlow determined that the bequest was too indefinite for the Court to execute.

The next case is Morice v. The Bishop of Durham.(z) In that case, Ann Crackerode, by her will, in 1801, bequeathed the residue of her personal estate to the Bishop of Durham, his executors, &c. upon trust to pay her debts, legacies, &c. and to dispose of the ultimate residue to such objects of benevolence and liberality, as the Bishop of Durham should most approve of; and she appointed him her sole executor. The bill was filed by the next of kin, praying, among other things, that the residuary bequest might be declared void. Sir William Grant, M. R. in the course of his judgment, said, that it was then settled, that where a charitable purpose was expressed, however general, the bequest should not fail on account of the uncertainty of the object, but the particular mode would be directed by the King in some cases, in others by the Court; that the word "charity," in that Court derived its signification chiefly from the statute of Elizabeth ;(a) and he proceeded thus: "Those purposes are considered charitable, which that statute enumerates, or which by analogies are deemed within its spirit and intendment; and to (y) Cited in note 7 Ves. 50. (z) 9 Ves. 399. 10 Ves. 522. 539. (a) Stat. 43. ch. 4.

some such purpose every bequest to charity generally shall be applied. But it is clear liberality and benevolence can find numberless objects, not included in that statute, in the largest construction of it. The use of the word "charitable" seems to have been purposely avoided in this will, in order to leave the bishop the most unrestrained discretion. Supposing the uncertainty of the trust no objection to its validity, could it be contended to be an abuse of the trust to employ this fund upon objects, which all mankind would allow to be objects of liberality and benevolence; though not to be said, in the language of this Court, to be objects also of charity? By what rule of construction could it be said, all objects of liberality and benevolence are excluded, which do not fall within the statute of Elizabeth? The question is, not, whether he may not apply upon purposes strictly charitable, but whether he is bound so to apply it? I am not aware of any case, in which the bequest has been held charitable, where the testator has not either used that word, to denote his general purpose, or specified some particular purpose, which this Court has determined to be charitable in its nature. All the cases upon that subject are to be found in the report of Moggridge v. Thackwell.(b) Browne v. Yeale, (c) I should have thought a much more doubtful case. There was ground for contending, that the particular purpose specified was charitable in itself, according to the decisions of this Court; and it was described by the testator as a charitable design. But here there is no specific purpose pointed out, to which the residue is to be applied: the words "charity" and "charitable" do not occur: the words used are not synonymous: the trusts may be completely executed, without bestowing any part of this residue upon purposes strictly charitable. The residue, therefore, cannot be said to be given to charitable purposes; and, as the trust is too indefinite to be disposed of to any other purposes, it follows, that the residue remains undisposed of; and must be distributed amongst the next of kin of the testatrix." The cause was subsequently brought before Lord Eldon, C., upon an appeal from the decision of Sir William Grant, M. R. who confirmed the decree, and in the course of his judgment observed; "The only case, decided upon any principle, that can govern this, is Browne v. Yeale; which applies strongly. I do not trust myself with the question, whether the principle was well applied in that instance : but the decision furnishes a principle, which the Court must endeavour well to apply in cases that occur: I do not hesitate to say, I entertain doubt, not of the principle, upon which that case was decided, but whether it was well applied in that instance. But the question is, whether, according to the ordinary sense, not the sense of the passages and authors alluded to, treating upon the great and extensive sense of the word," charity" in the christian religion, this testatrix meant by these words to confine the defendant to such acts of charity or charitable purposes as this Court would have enforced by decree, and reference to a Master. I do not think that was the intention; and, if not, the intention is too indefinite to create a trust. But it was the intention to create a trust; and the object, being too indefinite, has failed. The consequence of law is, that the bishop (c) Last page.

(b) 7 Ves. 36, supra, Vol. II. p. 153.

takes the property upon trust to dispose of it, as the law will dispose of it; and not for his own benefit, or any purpose this Court can effectuate. I think, therefore, this decree is right."

So in James v. Allen,(d) Elijah Waring, by his will, gave the residue of his personal property to the defendants William Allen, Joseph Allen, and William Mathews, (whom he appointed his executors,) and to their executors and administrators, in trust to be by them applied and disposed of for and to such benevolent purposes, as they, in their discretion, might unanimously agree on. Sir William Grant, M. R. decided, that the bequest was void for uncertainty. His Honour observed: "I certainly did not conceive, that, in the case of Morice v. The Bishop of Durham,(e) it was merely by the addition of the word "liberality," that the trust was rendered uncertain, and therefore incapable of being carried into execution. "Liberality" is, no doubt, distinguishable from "benevolence," but benevolence is also distinguishable from "charity." For although many charitable institutions are very properly called "benevolent," it is impossible to say, that every object of a man's benevolence is also an object of his charity. Nor do I see how the required concurrence of three persons in the selection of the objects does, by any necessity, exclude the appropriation of the property to purposes very different from any that are specified in the statute of Queen Elizabeth, (f) or that have been held to be within the analogies of that statute. In the case before referred to, it was attempted, in the argument on the appeal, to maintain that, although the bequest should be held to be void, so far as it was made for purposes of "liberality," yet liberality," yet it ought to be considered as good, in so far as it was for purposes of "benevolence;" which last word, it was said, was equivalent to "charity." The Lord Chancellor does not say, that there could not be proportional division, where a bequest was in part only for a charitable purpose, as in the Attorney General v. Doyley,(g) but holds generally, that no charitable purpose was sufficiently expressed. In that case, as in this, the whole property might, consistently with the words of the will, have been applied to purposes strictly charitable. But the question is, what authority would this Court have to say, that the property must not be applied to purposes, however benevolent, unless they also came within the technical denomination of charitable purposes? If it. might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute. I see no substantial difference between this case and the former, and therefore consider the point as already decided, though if it were still open, I should not entertain any doubt on the question."

Again, in the more recent case of Ommanney v. Butcher,(h) Buckeridge Ball Ackworth, after giving various legacies to individuals, and public charities, directed his books, jewels, plate, and furniture to be sold, and desiring his linen might be divided among his servants, to whom he also gave mourning, concluded his will thus: "I desire to be given to Mr. Ellis, Mr. George Ellis, Mr. Bates, and (e) 9 Ves. 399, supra, Vol. II. p. 180. (@) & Vin, ab. 485. 2 Eq. ab. 194. 58. note.

3 Mer. 17.

(f) Stat. 43. (h) i Turn. 260.

Mr. Sutherland, and to my two executors, five guineas each for a ring, as a token of remembrance; in case there is any money remaining, I should wish it to be given in private charity." Upon a reference made to the Master, the clear residue of the testator's estate was found to amount to more than was required to pay his debts and legacies. Sir Thomas Plumer, M. R. after deciding that the executors did not take beneficially, proceeded thus: "My opinion is, that the testator was adverting to that which he has directed to be converted into money, and that the clause in question does not comprehend the general residue, but must be considered as applying to the residue of the produce of those articles, which the testator has directed to be sold, after providing for the payments which are ordered to be made. Supposing that to be the case, it remains to be considered whether the Crown is to distribute this sum, or whether it belongs to the next of kin. The amount is small, but the principle is considerable: it appears to me that this case falls within the principle of the cases cited, in which there is no object sufficiently definite to give the Crown jurisdiction, or to enable the Court to execute the trust. There is no case, in which private charity has been made the subject of disposal in the Crown, or been acted upon by this Court. The charities recognized by this Court are public in their nature, they are such as the Court can see to the execution of. In this case the difference is obvious; if a party is to execute the purpose of this testator, he cannot give to public charities; the disposition must be confined to private charity. In what respect does private charity differ from benevolence? Assisting individuals in distress is private charity, but how can such charity be executed by the Court, or by the Crown. In all cases the general principle is, that the trust must be of such a tangible nature, as that the Court can deal with it; when it is mixed up with general moral duty, it is not the subject of the jurisdiction of a court of justice. Private charity is in its nature indefinite; how can it be controlled, how can it be carried into execution; as a general purpose of charity, the object of this testator cannot be carried into execution; as a trust, it is not sufficient specific or definite. The sum in question must, therefore, go to the next of kin. With respect to the case of Legge v. Asgill,(i) the testatrix in that case, in the body of her will, says, "I believe there will be sufficient money left to pay my funeral expenses;" and in the codicil she uses the expression, "If there is money left unemployed, I desire it may be given in charity." In the will, the word "money" must have referred to the general residue, because it was out of the general residue that the funeral expenses must be paid; and it could not be doubted, but that the same word in the codicil must have reference to the same subject."

The last case to be adduced is that of Vezey v. Jamson.(k) There John Vezey gave the residue of his estate to his executors, upon special trust and confidence, nevertheless, to apply and dispose of the same in or towards such charitable or public uses or purposes, person or persons, or otherwise, as he might, by any codicil or codicils to that his will, or by memorandums in his own handwriting, (1) Note, 1 Turn, 265.. (k) 1 Sim, & Stu. 69.

direct or appoint, and as the laws of the land would admit of; and, in default of any such directions or appointments, then, as to the whole residue, or in case of any such directions or appointments, and the same should not be an entire disposition of such residue, then, as to such part of such residue concerning which no such direction or appointment should be made, upon trust, to pay and apply the same in or towards such charitable or public purposes, as the laws of the land would admit of, or to any person or persons, and in such shares and proportions, sort, manner, and form, so as his executors or the survivor of them, or the executors or administrators of such survivor, should, in their or his discretion, will, and pleasure, think fit, or as they should think would have been agreeable to him, the said testator, if living, and as the laws of the land did not prohibit but admit of. The testator never by any codicil or memorandum specified any purpose, to which the residue was to be applied. The plaintiff, as next of kin, claimed the residue as undisposed of; and, on behalf of the Attorney General, it was insisted, that it must be applied to charitable purposes, under the direction of the Court, pursuant to the wishes of the testator. Sir John Leach, V. C., in determining the bequest void, observed, "In the event of no appointment of this residuary estate by the testator himself, he has given it to trustees to dispose of it at their will and pleasure, either for charitable purposes, or public purposes, or to any person or persons, in such shares and proportions, sort, manner, and form, as they in their discretion shall think fit, and the laws of the land shall not prohibit. It is in effect a gift in trust, to be absolutely disposed of in any manner that the trustees think fit, which is consistent with the laws of the land, and so that it be not applied for their own use and benefit. The testator has not fixed upon any part of this property a trust for a charitable use, and I cannot therefore devote any part of it to charity. He has given it to the trustees expressly upon trust; and they cannot therefore hold it for their own benefit. The necessary consequence is, that the purpose of the trust being so general and undefined, that they cannot be executed by this Court, they must fail altogether, and the next of kin become entitled to the property. The case of Morice v. Bishop of Durham, is precisely in point.

CHAPTER XX.

Of Interest upon Legacies.

INTEREST is payable on money in general, on the ground of délay in liquidation of the principal: so also, with respect to legacies, it may be stated as a general rule, that it is payable on them from the time at which the principal becomes actually due. The first inquiry therefore is when the principal of the legacy becomes payable; and upon this subject the Reader is referred, in connexion with the discussions in the present chapter, to the second section in the fourteenth.