others. A ftronger cafe could not well arife than Collifon's cafe, in Hob. 136. Attorney General against and Moor 888. A devife made in 25 Hen. VIII. before this ftatute of Lady Downing and wills, of a house and land, not devifable by any cuftom, nor eftated in use to any, to his wife for life, and the rents then to be employed for the repair of a highway. Decree for a highway. On appeal it was referred to Mountague and Hobart, and they were of opinion, that the intended devise is a limitation or appointment to a Charitable ufe, to be relieved by the 43 Eliz. and the Chancellor confirmed the decree upon exceptions taken by Rolt the heir at law, to whom that eftate was defcended. A moft violent retrospective relation, to make a devise void at law, a good one in effect in equity. Flood's cafe, Hob. 136, is the devise of a remainder to a corporation. The judges held the devife to be void at law, but clearly within the relief of the statute of 43 Eliz. and it was decreed, that the College fhould enjoy it against the ward and his heirs. And it was faid (a), that the provifo, exempting Colleges, was not intended to reftrain gifts made to them, but only to exempt them from being the Decree. reformed by Commiffion. Duke's Charitable Uses, 77, cafe 16. The fame doctrine laid down in favour of a devife to St. John's College in Cambridge. The King and Newman, 1 Lev. 284. It was held by Lord Keeper Bridgman, that a devise to Trinity College was good by 43 Eliz. notwithstanding the ftatute of mortmain. Thefe cafes have fo fully fettled, that devifes to corporations in effe, are good appointments of the truft in equity, notwithstanding the ftatutes of mortmain, and the exception of corporations in the ftatute of wills; and this court has fo uniformly established these devifes upon the ftrength of thefe decifions for near a century and a (a) It is fo mentioned in half, neral against Lady Downing and others. Attorney Ge- half, that it is really unneceffary to speculate minutely upon Colleges or the University being within the words of the 43 Eliz.; but I own the provifo in the act is a ftrong legislative expofition of the extent and meaning of the word in the antecedent clause. For if they had not confidered them as falling directly under the enacting claufe, the provifo was vain and ufelefs; and the provifo is by Sir T. Moore, Duke 171. taken by equity to extend to the University, which is a body politic, though Colleges only are mentioned. And, indeed, I think Universities and Colleges are within the proper and genuine fenfe and meaning of the words, "Schools of learning." The places where the public exercises are performed, are called the Schools. An Univerfity is a great School, incorporated to inftruct, by their profeffors and regular exercifes, all who come to ftudy there, and by degrees to give their students rank and credit in the republic of letters, and which are qualifications for lucrative offices and employments in life. It is a public School of divinity, phyfic, law, and all arts and sciences. And Colleges are Schools of learning, furnishing fcholars for the univerfal School, which is a combination of all those Schools and in any other view, than as Schools of learning, they are as ufelefs to fociety as Monafteries: and therefore I think they are not only within the equity of the act, but the words of it. And I confider this devife as made for the further augmenting of the University; and for that reafon the University, in its corporate capacity, is very properly made a Relator in this Information, being materially and effentially interested in the benefaction. For though the University is not a corporation of Colleges, but of matriculated members, and all Colleges are diftinct and separate corporations, yet thefe Colleges attract and furnish the members to be matriculated, matriculated, and every new College enlarges the univerfal School, and by increafing the number of scholars, adds weight, dignity, and ftrength to the University. And therefore, if an object in effe was neceffary, the University is that object in esse to take and accept this benefaction instanter, subject to that controuling power, which, by the fundamental law of the land, is given to the King, in refpect of the medium through which they are to receive the benefit of it. And the further augmenting of the Universities is a good and godly use. 1 Edw. VI. c. 14. exprefsly calls it fo. Erecting grammar fchools, further augmenting Universities, and the better provision of the poor and needy, are there mentioned together, as good and godly ufes, and recommended to the king's care and protection in the diftribu-tion of the estates given him by that Act. But another objection is then made to this devife. That it is a devife to a non-entity, and that it depends both upon the confent of the University and the Crown, whether there ever will be fuch a being or not. First, I fhall confider how the law ftands as to devifing legal eftates to perfons not in esse, either in poffeffion or remainder. A devife to A. B. the firft fon of C. whether in poffeffion or rcmainder, is void, if there be no such person as A. B. when the will was made; because the devife proceeds upon a fuppofition, which is falfe, and the foundation of the devife fails as to the object. But a devife in poffeffion to a perfon not in effe, by a defcription which manifefts the teftator's knowledge of his not being in effe, will be good, Attorney Ge- neral against ing and others. neral against Lady Downing and others. Attorney Ge- half, that it is really unneceffary to speculate minutely upon Colleges or the University being within the words of the 43 Eliz.; but I own the provifo in the act is a strong legislative expofition of the extent and meaning of the word in the antecedent claufe. For if they had not confidered them as falling directly under the enacting clause, the provifo was vain and ufelefs; and the provifo is by Sir T. Moore, Duke 171. taken by equity to extend to the University, which is a body politic, though Colleges only are mentioned. And, indeed, I think Universities and Colleges are within the proper and genuine fenfe and meaning of the words, " Schools of learning." The places where the public exercises are performed, are called the Schools. An University is a great School, incorporated to inftruct, by their profeffors and regular exercifes, all who come to ftudy there, and by degrees to give their students rank and credit in the republic of letters, and which are qualifications for lucrative offices and employments in life. It is a public School of divinity, phyfic, law, and all arts and sciences. And Colleges are Schools of learning, furnishing fcholars for the univerfal School, which is a combination of all thofe Schools and in any other view, than as Schools of learning, they are as useless to society as Monafteries: and therefore I think they are not only within the equity of the act, but the words of it. And I confider this devife as made for the further augmenting of the University; and for that reafon the University, in its corporate capacity, is very properly made a Relator in this Information, being materially and effentially interested in the benefaction. For though the University is not a corporation of Colleges, but of matriculated members, and all Colleges are diftinct and separate corporations, yet thefe Colleges attract and furnifh the members to be matriculated, matriculated, and every new College enlarges the univerfal School, and by increafing the number of scholars, adds weight, dignity, and ftrength to the University. And therefore, if an object in effe was neceffary, the University is that object in esse to take and accept this benefaction instanter, subject to that controuling power, which, by the fundamental law of the land, is given to the King, in refpect of the medium through which they are to receive the benefit of it. And the further augmenting of the Universities is a good and godly use. 1 Edw. VI. c. 14. exprefsly calls it fo. Erecting grammar schools, further augmenting Universities, and the better provifion of the poor and needy, are there mentioned together, as good and godly uses, and recommended to the king's care and protection in the diftribution of the estates given him by that Act. But another objection is then made to this devife. That it is a devise to a non-entity, and that it depends both upon the confent of the University and the Crown, whether there ever will be such a being or not. First, I fhall confider how the law ftands as to devifing legal eftates to perfons not in esse, either in poffeffion or remainder. A devife to A. B. the firft fon of C. whether in poffeffion or rcmainder, is void, if there be no such person as A. B. when the will was made; because the devife proceeds upon a fuppofition, which is false, and the foundation of the devise fails as to the object. But a devife in poffeffion to a perfon not in effe, by a defcription which manifefts the teftator's knowledge of his not being in effe, will be Attorney Ge- neral against ing and others. good, |