CTR: 1819. BEESTON WHITE. brought upon the judgment, instead of suing out execution upon it, and a plea of bankruptcy had been put in, the proper evidence would have been an examined office copy of the record, which would be conclusive. IN THE EXCHEQUER CHAMBER. Coram RICHARDS, LORD CHIEF BARon. & Have 648 KIRKBANK and Others v. HUDSON and Others, and the ATTORNEY-GENERAL. 18 Bea 320 A gift of the THE plaintiffs, the next of kin of the testator, residue of a testator's per filed this bill to obtain a declaration by the Court. sonal estate to 500000 trustees for the perpetual endowment and 16 that maintenance of a school, would be a valid bequest, and not within the statute of the 9 Geo. II. ch. 36. But if after such completed bequest, the testator goes on to recommend the trustees to collect the residue, and lay it out at a convenient time in the purchase of freehold lands, &c. for that purpose, it comes within the statute, because the word "recommend" is imperative on the trustees, and leaves them no discretion, but raises a trust, which must be carried into execution, unless there be in some other part of the will an express option given to them in terms so to lay out the money, or not, in their discretion. that the following gift and bequest in the will of Richard Dickinson, was void, and for an account and distribution. The testator, (having by his will given to the defendants Thomas and Samuel Hudson, all such freehold and other messuages, lands, &c. as were vested in him by way of mortgage, for the purpose of enabling them to reconvey,) gave and bequeathed (after payment of all his debts, legacies, and funeral expences &c.) the residue in these words;-" I give and bequeath all the rest of my monies, goods, effects, and personal estate whatsoever, to be a perpetual endowment or maintenance for two schools:" (naming them) and he appointed the said Thomas and Samuel Hudson (the trustees) and the survivor of them, and the rectors for the time being of the parishes in which the schools were, and their successors, for ever, patrons of such schools, with certain directions as to their conduct." Then, after giving his library of books, and his book-cases, to the two schools, he proceeds thus:-" And I recommend that at a convenient time my money shall be collected together, and laid out in the purchase of a freehold messuage and tenement or lands which are freehold, to be a perpetual endowment for the two schools, by an equal portion, to each of the schoolmasters in every year, after all incidental expences are paid; provided, and my will is, that my estate and effects so vested in trust shall be suffered to accumulate until the annual proceeds shall amount to 100l. per annum for each schoolmaster, and then the net annual prosceds P 3 proceeds shall be applied for the endowment of the said two schools as aforesaid." Jervis and Simons, for the plaintiffs, insisted, that this bequest was a devise of money &c. to be laid out in land within the 9th of Geo. II, ch. 36; for that the word "recommend," used in the will, was imperative upon the trustees, and created a trust which must be executed; and that principle was fully established in Pierson v. Garnet (a). In Malim v. Keighley (b), it was decided, that the word "recommend" indicated desire, and was even stronger than the word "request," and that it excluded discretion. They also submitted, that words apparently giving trustees a discretion to lay out the money in land or not, would not protect a bequest from the operation of the statute of Mortmain, as was decided in the case of Grieves v. Case (c), where the bequest was of 600l. to be laid out in lands &c. and till an eligible purchase could be made to be placed out at interest, which was held to be void, on the ground that it was a devise of land, because the trustees must have laid out the money in land. And they cited further Chapman v. Brown (d), and the Attorney-General v. Davies (e), with the other cases therein referred to, as additional authorities to the same effect. The case of Grimmett v. Grimmett, which they assumed would 1819. KIRNBANK be relied on by the defendants, they submitted, had been subsequently over-ruled by the cases of English v. Ord (a), Grieves v. Case, and other and others subsequent decisions. Martin and Lynch, for the trustees, and Raithby for the Attorney-General, contended, that the word "recommend," as used in the present bill, was not imperative, but that the testator obviously meant to give his trustees a discretionary power, for that in this case there existed a distinction from all those cited, the testator having first given the residue of his personal estate absolutely to the charity then he recommends thém, in the way of advice, to lay out the money to be collected in land, for the benefit of the charity; but he does not thereby imperatively impose on them a duty to discharge in so doing, or in effect create a positive trust, which must necessarily be executed: and whenever trustees may, by exercising a discretionary power given to them by their testator, (and which very slight words would give them) preserve the charity from the effect of the statute, the courts have always supported the bequest, on the principle laid down by Lord Hardwicke in the cases of Soresby v. Hollins (b), and Grimmett v. Grimmett (c). In the latter case the Lord Chancellor's words are, where there is sufficient room for the Court to say there is a discretionary power in the trustees to lay the money out one way or (a) Highmore on Charitable Uses, p. 82. (b) Burn's Eccl. L. 556. HUDSON and others. Friday, 23d April. 1819. KIRKBANK and others other, either in the funds or lands, I have determined such a devise to be good," and that decision has never yet been over-ruled. Here the and others. recommendation was not mandatory, and its adoption rested wholly with the trustees. t. HUDSON They submitted, that in all cases where words of recommendation had been determined to create a trust, the trusts held to be created were lawful, and such as might legally be raised; whereas here, there was a discretion given to elect one of two trusts, the one lawful, the other unlawful; and in such a case the executors might reject the one, and adopt the other. They further urged that the laying out the money in lands would in this case be a void condition, and yet the gift would be good, because it would be a condition subsequent, and being illegal, need not be performed; Co. Lit. 206 b. As to the cases cited on the construction of the word "recommend," they submitted that although the case of Cunliffe v. Cunliffe, and those upon which the decision there was founded, had been somewhat opposed by the other decisions, yet they were still subsisting authorities, and entitled to respect; and in a case like the present, differing as it did in so many important circumstances from all others, might fairly be cited in aid of the general principle on which the defendants relied. Jervis having replied, the Lord Chief Baron took time to look into the cases. Adv. vult. RICHARDS, |