1825.-Pieschel v. Paris.

pointed out by the testator as the objects of his bounty; and that, in regard to all such other parts of the 40,000l. three per cent. stock, in respect of which blanks were left by the testator in his said will for the names of the other charities which were to be entitled, or the sums to which they were to be entitled, the same were void for uncertainty; and that so much of the said 40,000l. three per cent. stock, as was not well bequeathed by the will, fell into and constituted a part of the general residuary personal estate of the testator.

The governors of Christ's Hospital, by their answer, claimed an interest in so much of the 40,000l. three per cent. stock, and the interest or dividends thereof, as was not specifically bequeathed by the will, and in respect *of which blanks were left in the will; and insisted that, as such [389] governors, they were alone entitled to apply and distribute such parts

of the 40,000l. three per cent. stock, or of the interest and dividends thereof, in respect of which such blanks were left, either for the benefit of Christ's Hospital, or to such other charitable purposes as they might think proper, and that the same did not pass to, and form a part of, the general personal estate of the testator.

Mr. Heuld, and Mr. Phillimore, for the plaintiffs:-This cannot be held to be a gift for charitable purposes, generally; because not only the mode of application is left uncertain, but the very sum which is to be the substance of the gift is undefined. Mills v. Farmer. (a) The court has certainly held that, where a testator gives a legacy to a charity, to be named in a codicil to his will, although no codicil is made, it is a good gift for general charitable purposes, to be effectuated under the direction of the court. But, in all these cases, the precise amount of the gift is specified by the testator. Where the amount is not specified, as in this case, there is so much uncertainty that the

court cannot act.

Mr. Turner, for some of the residuary legatees, who were defendants :-The cases have certainly gone a great length in effectuating a general intention to give for a charitable purpose. But if the court can collect that it was not the intention to dispose of the legacy at all, unless for some particular charity, there is great difficulty in holding that there is any gift at all for any charitable purpose.

*Mr. Daniell, for the governors of Christ's Hospital:—It is plain, [*390] as the blanks were not filled up, and as there is a general gift to a charity, that the testator meant, if he did not fill up the blanks, that the whole should go to Christ's Hospital. In Moggridge v. Thackwell, (b) the Lord Chancellor laid down the principle that, where there is a general indefinite purpose, not fixing itself upon any object, as this in a degree does, the dispo sition is in the king by sign manual: but where the execution is to be by a trustee, with general or some objects pointed out, there the court will take the administration of the trust. On the authority of that case, the execution

1825.-Pieschel v. Paris.

of the charitable trust is here, by the will, vested in the governors of Christ's Hospital, who would be entitled to lay before this court a scheme for the administration of the charity. Baylis v. The Attorney-General, (c) and Wheeler v. Sheer, (d) are to the same effect.

Mr. Wray, for the attorney-general:-This is a stronger case than Mills v. Farmer; for, in that case, and in a case in 2 Freeman, 262, ca. 330, b. there cited, the court proceeded upon a mere general indication to give to a charity. In that case the disposition of the fund was left to the crown, and the same course should be pursued here.

The VICE-CHANCELLOR :-The testator gives to the president, treasurer and governors of Christ's Hospital, a legacy of 1,000l., upon condition [*391] that they, and their successors for ever, *do distribute and pay the various annual sums next in his will directed to be paid, to the various charitable and other establishments thereinafter mentioned; and, for that purpose, he gives to the president, treasurer and governors of the hospital, 30,000l. stock, bearing an interest of four per cent., in the London Dock Company, commonly called London Dock Shares, upon the trusts after mentioned, that is to say, upon trust that they, the president, treasurer and governors for the time being, should, from time to time for ever thereafter, receive the dividends, interest and annual proceeds of the dock shares, and should apply the same in the manner and for the purposes thereinafter mentioned: he then directs that, of such interest and dividends, they shall every year pay the sum of 100%. to the treasurer of the London Hospital, for the sole use and benefit of that charity; and, in like manner, he directs that, of such interest and dividends, they shall every year pay certain other sums, amounting together to 6501., to nine other charitable institutions, for the use and benefit of those charities; he then directs that they shall, every year, pay the sum of other part of the said interest and dividends, to the treasurer of to be by him applied for the benefit of that charity; and these blank gifts are four times repeated in the same form of expression. He then directs that they do and shall, every year, pay the sum of 200l., being the residue of the said interest and dividends, to the Earl of Chichester for the time being, to be by him ap plied to certain other charitable purposes there specified. This last disposi tion makes it evident that the four blank gifts were intended to amount together to the sum of 2501., which, being added to the sum of 7501. before given,

and the 2001. after given to the Earl of Chichester, would complete [*392] the *full sum of 1,2001., being the amount of the annual interest or dividends on the 30,000l. stock in the London Dock Company.

The effect of this will is, that it manifests a general disposition of the testator to dispose of the sum of 1,2007. in charities; but that the testator had not absolutely made up his mind as to the particular charities which should share in the 2501.

1825.-Winter v. Blades.

I am of opinion, upon the authority of the case of Mills v. Farmer, and the cases there referred to, that this court will execute that general intention; and that it must, in that case, be referred to the master to approve of a scheme for the application of this 2507. having regard to the nature and character of the other gifts contained in the will.[1]

1825, 29th June; 17th August.-Vendor and purchaser.—Interest. Where the purchaser, upon entering into possession, paid the amount of his purchase money to his banker, and gave notice that he was ready to invest it in such manner as he, the vendor, should require; but no answer was returned to that notice, and the purchaser, during the investigation of the title, kept in the hands of his banker a balance equal to the amount of the purchase money, except for four days, when it was a little less; the court held the purchaser not liable for interest on the difference between his average balance during the period in question and during the three preceding years.

THE bill in this cause was filed, by the vendor of an estate, merely for the purpose of claiming interest on the purchase money from the time the defendant, the purchaser, was let into possession. The purchase money was 14,000l. and, immediately upon entering into the contract, the purchaser called in a sum of money, secured by a mortgage, amounting to 12,4007.; and upon entering into possession of the estate, gave notice to the vendor that he was ready to invest the purchase money as he should direct, pending the investigation of the title. The vendor, hoping for an immediate conclusion of the purchase, did not answer that notice. The investigation of the title, however, occupied nine months.

The banker of the defendant proved that, during the nine months, the balance of the defendant in his hands was never less than 14,000l. except during three successive days, when it was 13,8761., and one other day, when it was 13,7691.

Mr. Horne, and Mr. Pemberton, for the plaintiff:-The court has held the purchaser liable to pay interest in cases much stronger than the present. In Powell v. Martyr,(a) it was decided that there must be absolute notice, not only that the purchase *money is appropriated, but also that it is [*394] unproductive, in order to relieve the purchaser from payment of interest. In that case, there were two circumstances stronger than any which occur in the present; for it was there proved, 1st, that the amount of the purchase money was paid by the purchaser into the hands of his solicitor; and 2d, that it was appropriated for payment to the vendor. Here there was no appropriation. The money was merely paid by the defendant into the hands

(a) 8 Ves. 146.

[1] Vide Ellis v. Selby, 7 Sim. 352.

1825.-Winter v. Blades.

of his banker, where he must have had a balance, at any rate. Comer v. Walkley,(b) and Dickenson v. Heron, (c) are cases in which, notwithstanding long delays in completing the purchase, and delays not imputable to the purchaser, he was yet decreed to pay interest. It must be admitted that the defendant here stated that the money was ready, and might be invested at the desire of the plaintiff. But that is not sufficient; for, if the money was invested in exchequer bills, it would still have been ready, but not unproductive; for it is settled there must be distinct notice that the money is unproductive. There are cases in which the court charges a party with interest on trust money, even when he has made no profit on it, but kept it idle at his banker's ;[1] for the court considers that as an employment of the money, because it relieves the party from keeping there a balance of his own money. The defendant cannot avail himself of the fact which he endeavors to establish, as to the delay in the completion of the title being the fault of the plaintiff. The prin

ciple on which the court acts as to the payment of interest is, that the [*395] fund is *productive, or that the vendor has no notice of its being unproductive.

Mr. Hart, and Mr. Pepys, for the defendant, insisted on the facts that the money had been unproductive; that the delay had been occasioned entirely by the plaintiff, although the defendant did all in his power to urge him on to a completion of the contract; and that the defendant had called in a mortgage, for the sole purpose of obtaining the money to pay for his purchase; and that, at the very time when the plaintiff sent notice that he expected interest at five per cent., he had not shown a good title to the estate.

The Vice-Chancellor recommended the parties to come to a compromise ; but, as they declined doing so, the case stood for judgment.

The VICE-CHANCELLOR :—If, after the notice given by the defendant, he had made no profit of the purchase money, then it would not be reasonable that he should be charged with interest. But that he has made some profit of the money appears upon the defendant's own evidence; first, because his balance at his banker's was, in a small degree, and for a few days, reduced below the amount of the purchase money; but, principally, because the purchase money supplied the place of that balance, which he must otherwise have maintained. at his banker's.

Let the master inquire what was the average balance which the defendant maintained at his banker's during the three years preceding the purchase,

computing such balances at the end of every month; and let the [*396] *master also inquire what was the average balance which, during the time in question, the defendant maintained at his banker's, computing such balance monthly; and let the master deduct what he shall find to

(b) Cited from Reg. Lib. in Mr. Sugden's Treatise on Vendors and Purchasers, 6th edit. 481 and 482. (c) Ibid.

[1] Vide Gray v. Thompson, 1 Johns. Ch. Rep. 82; Jennings v. Davis, 5 Dana, 132.

1825.-Kilvington v. Gray.

have been the defendant's average balance for the three years, from what he shall find to have been the defendant's average balance during the time in question; and declare that, to the amount of that difference, the defendant is not chargeable with interest on his purchase-money.[1]

KILVINGTON v. GRAY.

1825, 11th July; 17th August.-Devise.-Residue,

Testator directed his residuary estate to be laid out in the purchase of land, as soon as a convenient purchase could be found, in the county of York, which, upon a fair letting, would produce a yearly rent equal to three and a half per cent upon the amount of the purchase money. and, in the mean time, the interest of his residuary estate to be accumulated. The tenant for life will be entitled to the interest of the residuary estate, from the end of one year after the testator's death, until it is laid out as directed.

THOMAS KILVINGTON, by his will, dated in 1822, after devising his real estates to the plaintiff for life, with divers remainders over, disposed of the residue of his personal estate in the following manner :--" I give and bequeath all the rest and residue of my personal estate and effects, of what nature soever, which shall remain after payment of my debts, legacies, funeral and testamentary expenses, unto William Gray and Francis Barrowby, their executors, administrators, and assigns, upon trust that they do and shall lay out and invest the same in the purchase of messuages, manors, lands, tenements and hereditaments of inheritance, in fee simple, in possession, to be situated in *the county of York, when and as soon as a convenient purchase or [*397] purchases can be found, which, upon a fair letting, will produce

a yearly rent equal to three and a half per cent. upon the amount of the purchase moneys to be paid for the same: and do and shall convey, settle and assure such manors, lands, tenements and hereditaments to such and the same uses, upon and for the same trusts, intents and purposes, and with and under and subject to such and the same powers, provisoes and declarations as are hereinbefore limited, expressed and contained of or concerning my freehold. lands, messuages, tenements, tithes and hereditaments first hereinbefore devised, or such, or so many of them as shall be then subsisting or capable of taking effect. Provided always, and I do declare my will to be, that, in the mean. time, and until such purchase or purchases as aforesaid can be found, the said

[1] Vide Esdaile v. Stephenson, 1 Sim. & Stu. 122. A vendce who enjoys the estate and withholds the purchase money, until a dispute in the title is adjusted, ought to pay interest. Brecken. ridge v. Hoke, 4 Bibb. (Kent,) 273. A vendee of land let into possession, and the purchase money remaining unpaid, shall pay interest thereon though the vendor be in default, unless he has not only kept the purchase money idle, but given the vendor notice that he has so kept it. Brockenbrough v. Blythe, 3 Leigh, (Virg.) 619. A greater degree of vigilance is required on the part of the vendor in perfecting the title to the purchaser, where the latter is not in possession of the property pur. chased, than is required from him where the vendee is in possession under the contract. Moore and others v. Smedburgh and others, 8 Paige, 601.