attorneygeneral v whorwood August whorwood v university college oxford devise  to a college not for academical or collegiate purpose but mere to make  testator house unalienable and that one of the fellow shall live in it for  ever Lord Hardwicke first think it questionable whether this be a charity  under the d of Elizabeth and whether a go devise under the mortmain act and it  be afterward determine to be void right of the crown to direct the use of a  improper charity see Moggridge v Thackwell Ves baron and feme husband receive  proceed of a sale of wife estate and promise by a note or receipt to lie it  out pursuant to trust relative to other property this note hold evidence of  the agreement antecedent to the sale and estate purchase afterward by the  husband be hold to be bind plead interrogate part of a bill must be support by  a substantive charge see ies sen Mitf and Ves exception voluntary deed good  against representative if they amount to a complete conveyance or transfer  captain Thomas whorwood on his marriage with a daughter of sir Nicholas wait  be to receive a large portion with her agree that it shall be settle for her  benefit for life and afterward if no child it be to come to himself afterward  on the death of a sister a accession of fortune come to her to arise by sale  of her father estate which be vest in trustee who be to raise certain sum of  money out of the estate and afterward to divide the residue among his three  daughter she join in levy fine for a sale of this estate Henry Halsey a  trustee in the marriagearticle and who have marry the three daughter act in  the sale and receive the whole purchase money not only his wife share but that  of mrs whorwood captain whorwood give a receipt to Halsey for his part of the  purchase money pay for the estate which he thereby promise and agree to lie  out pursuant to the trust repose in Halsey by his last will he devise the  remainder of his real and personal estate to the college and by a codicil  annex particular regulation videlicet that if there be a senior fellow vesey  senior er p of the college who must be a divine of the age of forty in all  respect of good repute he shall be the possessor of all his estate and  furniture of his house at Denton to keep it in repair not to fall timber  without consent of the college to live in his house hospitable and sometime  give entertainment to the poor to distribute cordial and drug to they when  needful to give to they some book and pamphlet of good moral and piety and to  give a annual entertainment to the fellow if he prove dissolute then the  election to be void and another proceed to on the information at relation of  the college it be argue that a devise to a college general be always consider  in this court as a proper charitable disposition because they be body of  universal extent and benefit to mankind it be therefore on the most valuable  consideration what follow be only regulation by the testator in which if any  difficulty they may be settle by proper authority and though some of they  shall be absurd that will not make the devise to the college void the  direction for take care of the poor be confine to a particular district be not  like colonel Norton will which be to take care of the poor and lame vesey  senior halt and blind in general but this be now establish to be a valid will  in point of law the particular direction and regulation will not make it void  against this it be insist this be no devise to a charity or to a superstitious  use if this be to be establish it be as this court represent the crown on  which this application be make to give a approbation of this charity under  testator regulation be this such a sort of use as ought to be establish by a  court of equity for ever the Elizabeth c have make good devise to college upon  a encouragement for learning if this be a devise of that nature it will be  within that statute which have define what shall be a charitable use though  some use not exact within those word have be determine within the statute as  the leave money or a estate for maintenance of a preacher which from its own  nature be so as for the propagation of religion yet be they very few for other  purpose have be endeavour to be bring within it which have be refuse for and  some use that be indifferent in themselves or for benefit of mankind in  general sal though this be to the college and the estate vest in it it be not  for the benefit thereof in general as a body but for particular purpose in the  annexation to his codicil which he call his regulation which be only give his  estate in mortmain to a person to live on it in the manner the owner shall  have do the duty be to be beneficial to the poor in some not in any certain  degree to live hospitable be the duty of every one who have a good estate he  be to continue still a senior fellow nor to do any act which shall avoid his  fellowship in this college celibacy be require and residence whereas the  nature of this institution be to draw he from the college which be not for the  benefit of learning within the statute of Elizabeth nor have it any tendency  to religion the only thing have a turn towards charity be the entertainment of  the poor which be not a act of charity although relieve their necessity be but  rather luxury beside it be only to be do sometime quite unlimited the add a  tincture of charity mere to make that good which otherwise will be void will  not do there be indeed a clause in this will which may be interpret to be a  devise of the advowson of the college and the estate give in augmentation of  the advowson the clause be in case of vacancy by death or otherwise the next  successor shall officiate as parish minister and so on from one to the other  the general word his estate will indeed carry the advowson but testator only  mean a voluntary officiate till the live be fill he be never name in the will  incumbent of the live but possessor of this estate the trust be to take effect  immediate on death of testator wife vesey senior whether it be then vacant or  not if he prove dissolute the college be to deprive he but by augment a live a  power of deprivation can be give to any other than the bishop of the diocese  this will may be void for the uncertainty in the method of election when a man  will settle his estate in this odd whimsical way the court ought not to  establish it it be lock up property which be against the policy of the law of  England the court have refuse carry into execution a particular turn of mind  though it be not a superstitious or illegal but a indifferent use as to feed  sparrow c especial as this be for ever it will be a reproach to a court of  justice and policy of the nation to suffer keep up for ever a trust for such a  purpose as that or as this which be only a charity ad to drink et to eat in  attorneygeneral v Oakaver February the master of the bolls establish a stipend  give to keep up a organ and for the organist but as to pound per and to the  chorister he refuse vesey senior er p it on appeal your lordship affirm the  decree as the chorister never be allow p in parochial church Lord chancellor  say what be go on be that it be contrary to the constitution of the church of  England to have they in parochial church and that they will be under no rule  of government as they be in other church and the law will not allow they shall  be under the government of the heir at law if this be no charitable or public  but a superstitious use it result to the heir at law sir James Markham the  legal estate vest indeed in the college but a corporate body may be a trustee  superstitious use go to the king by saint h not for benefit of the crown but  to dispose of they to other charitable use of the like nature their vest in  the crown be from their be all good use as religion stand before the  reformation but that be the case only where it be real a superstitious use for  where it be a improper or illegal use as this it be void and vest not in the  crown as in the case of Oakaver who enjoy the land free from the pound per and  the court not direct it to be give to the crown see however to the contrary  Amb and Ves and Moggridge v Thackwell Ves c Lord chancellor if this trust be  no charity there be no ground for the information in the name of the  attorneygeneral at the relation of the college on a devise to the college only  for such information can only be support on the foot of a charitable use on a  general devise to the college without more the college be a body capable of  take must sue the attorneygeneral have nothing to do with it and it be only  before I on that information vesey senior as to the trust create by these  regulation on the devise to the college I will give no opinion at present it  be a matter deserve consideration and shall come before the court on all the  circumstance of the case the establishment of learning be a charity and so  consider on the statute of Elizabeth a devise to a college general for their  benefit to increase the foundation and advance the end of the institution to  augment a headship or fellowship or find a new one be a laudable charity and  deserve encouragement and therefore they be except out of g but this be not a  devise of that kind for academical collegiate purpose but only to establish  somebody to live at his house at Denton for ever and to make his estate  unalienable answer no good to the college or the public so far as it appear at  present it be necessary therefore for the court to consider material what may  be the effect and operation thereof how far good in itself and if not what may  be the consequence of it as to any power in the crown to give direction to the  use of a charity improper provide for in itself as be do in attorneygeneral v  Baxter for where Lord north hold the trust do not result to the heir at law  the crown have power to direct in what manner it shall go and it be direct to  Chelsea college on a rehear before which the act of toleration pass the court  hold the charitable use be not contrary to law and reverse the decree but  nothing be say against his opinion that the power of direct come to the crown  if the trust be not supportable as a charitable use but this I will not  determine now it full deserve consideration and it be necessary to know the  effect of the devise itself how far his direction for fix a senior fellow and  provide for he in this manner be inconsistent with the constitution of the  college as to residence c for if so it be contrary to the intent of this trust  which be that he shall be a continue fellow of the college not bare when he be  elect then a point will arise if this be not a good charitable use within  Elizabeth it will stand as a devise to the college general it will be to a  body a able of take which will depend on the power they have to take in  mortmain and it be necessary to be inquire into how far they can do so that  the whole may be before the court when the trust come to be determine the  master therefore must inquire into that and whether the regulation be  inconsistent with the collegestatutes and reserve the consideration of the  validity and operation of the trust till after the report the next  consideration be what relate to mrs whorwood testator widow principal as to  what be to be lie out for her benefit under the marriagearticle or under any  agreement of the husband she by her cross bill demand not only to have a  settlement vesey senior on her for life of the estate at Denton which have not  yet be settle accord to the article but also to have the land and tenement  purchase with the share she be entitle to out of her father estate which be  agree by the article to be settle and also that share which come to her on  death of her sister vesey senior er p so settle insist that by the note her  husband give to Halsey there be a declaration of trust or at least a  engagement bind he and all claim voluntary under he that the whole money shall  be lie out accord to the trust in those article it extend to the whole there  be some consideration for it it be a reasonable act if he have come to have a  sale of that trustestate and that the share arise from the sale belong to his  wife pay to himself the court will not have let he have it if the wife or her  friend have insist there be a narrow provision make on her on the marriage and  therefore a further settlement shall be make this be not oppose as to her  father land but it be insist she be not entitle to have the benefit of the  other part arise from her sister death by settle it in like manner because not  within the article nor sufficient proof of any such agreement extend to that  as will bind those in his place nor sufficient put in issue if there be any  new agreement for that the bill put in issue only the article and the right  arise under they and nothing of this note it be to be confine to trust in the  article the wife levy a fine before the money come into the hand of the  trustee then the money come in lieu of the estate be absolute the husband and  the court will not suffer the person into who hand it come to retain it and  say a settlement shall be make on the wife Lord chancellor it have unfortunate  happen that the affection which at first subsist between the husband and wife  do not continue and she have be hardly use which though it will not alter the  justice of the case be a reason that thing shall not be take against her in a  strict harsh construction see Ves sen Fonb Tr Eq also Ves the note be not  strict put in issue but sufficient for this purpose and it will be to no  purpose to put off on any such defect so as to require a supplemental bill if  I shall be clear in the point of right as I be though there be no particular  charge in the bill yet in the interrogatory part there be question relate to  it whether testator do not by some note acknowledge he receive that money and  agree to lie it out in this manner the rule be you be not only to question in  the interrogatory part but make charge in the charge part otherwise you can  except but the defendant though not bind to answer to it have do so which be  reply to it be put in issue proper consequent that informality in the manner  vesey senior of charge for it be no more be suppliedby the answer to it for a  matter may be put in issue by the answer as well as by the till and if repair  to either party may examine to it which bring it to the question of right and  I be of opinion the be note be sufficient to bind the testator his  representative and claimant under his will to a performance of what be there  agree to a man may as between himself and his wife make a agreement or  declaration of trust in his life which though not for valuable consideration  shall take effect as against his executor or administrator or those claim  voluntary and in representation under Min of which there be several case in a  case relate to lady cowpers estate before sir Joseph Jekyl several thing of  that kind of gift Lord Cowper in his life be establish to belong to her and to  pass by her will though they can not take effect against creditor yet they  shall take effect unless some imperfection in the instrument in point of law  which there be not in the present case then as to the construction and extent  of the note I think it be a reasonable act for he to do and it be true insist  that on his application for the money the court will undoubted have order a  further settlement note wms Lord king decree so but do not seem to approve of  the practice and say sometime it prove inconvenient but that it be too long  establish to be overrule wms win wms Str atk if then they do not come into  court but act among themselves and the husband have agree to do that whichthe  court will have direct have the wife insist on it in a proper suit it shall  have its full effect though it do not appear in the cause that the wife have  levy a fine before this money come into the hand of the trustee as it be say  yet that must be to satisfy the purchaser as she be marry but I will not  divide one act from the other but take all as one transaction and that this  note though subsequent be a evidence of what be the agreement and intent  videlicet that this money shall be lie out in purchase of land to be settle to  the same use the circumstance warrant that construction the trustee in the  marriagearticle be the proper person to intervene and receive the money arise  by sale of that other share and to see the article perform for her benefit he  receive the whole the husband come to vesey senior er p receive it out of his  hand it be on such a promise which be a evidence of the term on which the  money be pay to he and of the agreement and intent on which the wife join in  the fine for sale of this estate it be reasonable and what the court will have  oblige he to have he come before it for that be the distinction if the husband  can lie hold of the wife estate without aid of a court of equity the court  will not compel he to do so as they will where he can without such aid which  be the present case the sum be particular ascertain and include both share as  well that which arise on her sister share as her original share and the  promise be to lie out the whole of that sum which therefore I be of opinion  must be lie out pursuant to the trust vesey senior another question be make as  to some land purchase by testator after marriage but never settle whether they  shall not be consider as a performance of the covenant he be under to purchase  land and settle on her for life it be insist on as a rule that where one be  under covenant to settle land or to purchase and settle if he leaves land in  their nature proper for a reversion will not do which be his former estate and  descend after his death or if he purchase and do not settle it will be  consider unless evidence to the contrary pro tanto or in the whole a  performance of the covenant and purchase with that view not on the head of  satisfaction but performance otherwise it will cause great confusion in family  this have be before the court several time first in Wilcox v Wilcox for  roundel v breare for Wilks v Wilks by Lord Harcourt and a case before your  lordship on Mr parson will cite in lee v daranda ante and take v Hastings for  for which your lordship search the register where there be a bind to charge  land of pound with pound per and to his daughter the obligor die have two  manor without do it the court hold that one manor not appear whether purchase  before or not shall be liable if that manor be purchase after it be very  strong last smith v deacon atk Lewis v hill Ves sen march where first there be  a demurrer and your lordship have a doubt whether Lechmere v Lechmere have not  go pretty far but be afterward satisfy on the bill of review it be a agreement  between the husband and trustee smith in consideration of pound portion agree  to convey and settle house land and tenement or a rentcharge issue thereout to  himself for life to wife for life in bar of dower to the heir of his body upon  her in default of such issue to the right heir for ever subject to a power to  charge for young child after marriage he never make any settlement of the land  rentcharge but purchase several little piece of land a piece of freehold of  inheritance another a reversion dependent on a life the question be wms  whether these purchase at different time and small parcel and some reversion  from whence it be argue it can not intend they in performance of the covenant  be a performance or whether the covenant shall be make good out of his asset  your lordship mention all the authority particular Lechmeres and hold that  they shall be take as a intend performance and that those land shall be so  settle it be object that this will be affect these estate as liens which will  follow they into the hand of purchaser or mortgagee the answer of the court be  that this depend on the intent and the presumption stand that he intend a  performance till the contrary be prove but any act show he have not that in  view as a mortgage or sale afterward will take off the presumption vesey  senior but this be give up on the other side as Lechmeres and the case cite be  too strong that if a person oblige under article to purchase do purchase  though not to the extent the article require that shall go to make it good so  far as it can be apply Lord chancellor it be admit that the freehold estate  purchase will be so apply they must be settle on the widow for life and  afterward as to the purchase prior to the last will they will pass thereby as  to those subsequent after the widow estate for life the reversion will descend  to the heir but there be some copyhold purchase by he which not be surrender  to the use of the will in point of law descend these can be apply to satisfy  these article I do not know that on a general covenant to purchase the court  have take copyhold land unless some agreement for that purpose to go to make  good article in this manner be liable to different tenor of or feature unless  therefore they passby the will they descend which will depend on the pen of  the will and bring if to the question of the charitable use for if it be such  it will be good by way of appointment yet I do not know vesey senior er p any  case where they have be make good as a appointment for benefit of a  remainderman it depend on this whether there be sufficient word to take in  copyhold land they be not mention it be a general devise of real and personal  estate under which devise there be no instance that copyhold shall pass if  there be freehold to answer it unless perhaps for creditor but it must be  inquire into to know when these copyhold land be purchase before I can  determine that let the master also inquire what freehold be purchase after the  marriage and let what the testator pay for they be accept and settle in lieu  and satisfaction of so much of what the widow be entitle to let the residue be  consider as a debt on testator estate to be lie out in purchase of land and  settle for her jointure the remainder in fee to the two senior six clerk not  towards the cause a method which have be sometime take for the benefit of the  person who shall appear entitle let the widow have interest at per cent for  such money as ought to have be lie out from her husband death as to the cost  at law the devisee be not entitle to cost against the heir for there be  several case where a heir at law dispute a will both in law and equity and yet  shall have his cost and this be a very proper case for it as to the widow I do  not think it be improper for her to dispute the will all party therefore shall  have cost to this time out of the estate but not to give her cost at law yet I  will not make her pay cost Reg lib a foe vide the decree supplement p with the  subsequent proceed c see the supplement from p to the codicil direct that the  college shall never self change or otherwise alienate the donation of the  manor of Denton or any part of the land and tenement thereto belong from the  purpose intend which be that if there shall be a senior fellow c c as in the  report one of the purpose be to give entertainment to the poor and needy from  the adjacent part the bequest be afterward declare void by Lord Northington c  vide supplement p c it seem settle that where the purpose of a intend  charitable gift be either contrary to law or too general and indefinite the  disposition be in the king by sign manual the contrary position therefore  contend in the argument above be not correct see the supplement p the  attorneygeneral v Baxter be thus mention in Lord hardwicke note the decree be  reverse not upon any thing contradiction the general principle report to be  state but because it be real a particular eject minister to be name by Baxter  and the same a those sixty individual vide per Lord Eldon c Ves Ves with Mitf  and Ves