*

v. BUTCHER.

[ *269 ]

executors," was easily understood, if it was meant that they OMMANNEY should undertake a troublesome duty, but was not likely to have been made use of, if the testator intended to constitute them his residuary legatees; and that although in the early parts of the will the executors were not the objects of equal favour; yet that equal legacies were given to them wherever they were taken up together as executors. His Honour then proceeded in the following manner :

The first question to be considered is, whether the executors are entitled to the general residue of the testator's estate. Let us suppose that the last clause of this will, upon which the material questions have arisen, had been altogether omitted; to whom would the testator's undisposed-of property have gone; can there be a doubt that the executors would have been trustees for the next-of-kin. There never has been a case in which executors have been permitted to take the residue for their own use and benefit, when equal legacies have been given to them, and given to them as executors. Their having equal legacies marks them as being intended to discharge laborious duties, and not to take for their own use and benefit what may be left as residue. If the last clause of this will had been omitted, I am clearly of opinion that the executors would have been trustees for the nextof-kin; then the question is, whether, as to this point, the last clause makes any difference; *whatever construction may be put upon that clause, whether it embraces the whole, or only a small portion of the residue, there is nothing in it which at all alters the character or situation of the executors, or gives any interest to them. Their claim therefore to have the residue for their own use and benefit cannot be sustained, and the question rests. entirely between the next-of-kin and the Crown.

The law upon cases of this sort is now reduced to very clear and distinct principles. Where there is a general indefinite charitable purpose, not fixing itself upon any particular object, the disposition is in the King by the sign manual; but where the gift is to trustees, with general or some objects pointed out, the Court will take upon itself the execution of the trust. Then what is the nature of this case; -is it a case in which the objects † Moggridge v. Thackwell, 6 R. R. 76.

[*270]

OMMANNEY are pointed out? is it a case in which a discretionary power is BUTCHER. Vested in selected individuals to execute a purpose expressed by

v.

[ *271]

the testator? Can the trust be discovered from the expression "I desire it may be given in private charity"? because a trust, to be carried into execution by the Court, must be of such a nature that it can be under the control of the Court; if the trust cannot be ascertained, the Court cannot see to the execution of it; it becomes too general and indefinite, and the consequence is, that the fund must either go as an absolute gift to the individual selected to distribute it, or that individual must 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-ofkin 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. The points to be considered in these cases are, whether the object is definite, whether the person is described by whom the distribution to be made, and whether that individual is, as in Mog idge v. Thackwell, a mere instrument to

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carry into execution the objects stated, or is to take the fund for his own benefit. If he is not to take for his own benefit, the consequence is, that if a particular object, as the erection of a school, or even a general object, provided it can be seen what the purpose is, is pointed out, the Court will execute the trust, although that object may fail, because then it has something to act upon but if there is an absence of discretion in individuals, and the object to which the fund is to be applied is of a general indefinite nature, the law casts the application of the fund upon the King as parens patriæ.

It is material upon this subject to consider, that in those cases where there is no direct charity pointed out, there may be a legal purpose of trust created to be carried into execution, not a superstitious use, not an illegal use. It is competent to a testator to direct his executors to give to his poor relations; that is not charity, but it is a trust to give to poor relations. So with respect to provisions for the distribution of books; if the

Morice v. The Bishop of Durham, 7 R. R. 232.

v.

BUTCHER.

object is not illegal, why is not the Court to see that the intention OMMANNEY is carried into execution; all those cases, not being cases of charity, in which the Court has interfered, only prove that the Court will execute a trust which is not illegal.

The cases which most nearly resemble the present are those in which there is a general description, such as in Morice v. The Bishop of Durham; the bequest there was in trust for such objects of benevolence and liberality as the Bishop of Durham in his own discretion should most approve; an individual was there designated trustee; the question was, not whether the trust was illegal, but *whether it was sufficiently definite for the Court to execute. Liberality and benevolence include charity, but they are not convertible terms. The case therefore not ranking under those which belong to charity, the question came to be considered, whether the purpose was sufficiently definite for the Court to execute. The Court held that it was not. The fund therefore belonged to the next-of-kin. It did not belong to the Crown because it was not charity, it did not belong to the Court because it was not sufficiently definite for the Court to execute, and a trust having been created it devolved to the next-of-kin. That was the principle laid down in Morice v. The Bishop of Durham. In all cases falling within that principle, where there is a generality which the Court cannot execute, and a trust imposed upon the individual who is selected to distribute, the trust fails, and the fund is held by the trustee for those persons to whom the law has given personal property which is not disposed of.

Two questions arise upon the last clause of the will of this testator; first, what is meant to be included in it; secondly, In what manner is the property included to be disposed of. The language of the clause in question is such as applies to a small sum only, small in regard to the property of the individual. It is spoken of as contingent, a circumstance, which if any other meaning can be put upon the clause, excludes the idea that the testator had in contemplation the general parts of his property of which he had made no disposition. Again the words of the will are, if there be any "money" remaining. Hotham v. Sutton has established that "money" does not by the force of the word

R.R.-VOL. XXIV.

E

[ *272 ]

T.

[ *273 ]

OMMANNEY include "stock." If then reason and the nature of the context BUTCHER. negative the probability that the testator was adverting to the stock, why is the Court to put a construction upon the word "money " which it does not naturally import? It is remarkable that up to a certain extent all the dispositions in this will are legacies of stock; the *testator therefore has distinguished where he meant stock to be the subject of his disposition, and the context shews that in the clause in question he was not adverting to the stock. To construe the word "money" to mean "stock' would be to alter the words of the will contrary to the context. I own there is difficulty in knowing what the testator meant, but in cases of this sort we must do our best to put the most natural construction upon the words. 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 recognised 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 a 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.

v.

[ *274 ]

Private charity is in its nature indefinite,-how can it be con- OMMANNEY trolled, how can it be carried into execution. As a general As a general BUTCHER. purpose of charity the object of this testator cannot be carried into execution, as a trust it is not sufficiently specific or definite. The sum in question must therefore go to the next-of-kin. With respect to the case of Legge v. Asgill,t 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 decree declares, that the plaintiffs the executors are trustees for the next-of-kin, as well of the remainder of the money arising or to arise from the sale of the specific articles and things directed to be sold by the will of the said testator Buckeridge Ball Ackworth, as of the general residue of the testator's personal estate.

LEGGE v. ASGILL.‡

(Turn. & Russ. 265, n.—269, n.)

Testatrix, by her will disposes of certain long annuities, and of a sum in cash, and then uses the following words: "I believe there will be sufficient money left to pay my funeral expenses."

By a codicil to her will the testatrix expresses herself thus: " If there is money left unemployed I desire it may be given in charity."

Held, that the general residue of the testatrix's personal estate, including a sum of 2,500l. trust monies, in which she had a vested reversionary interest, at the time of her death, subject to be divested by the appointment of her mother, passed under the words "money left unemployed," and was well given to charity.

*

1822.

Dec. 19.

1823.

July 8.

Lord ELDON, L. C.

[ 265, n. ]

HARRIOTT MARIA ASGILL made her will, dated the 25th of [266, n.] December, 1788, whereby, after appointing Amelia Colvile to be

+ See next case.

154, 53 L. J. Ch. 207.

In re Cadogan (1883) 25 Ch. P.