1. The plaintiff claims in this suit that the legacy under para. 5 of the testator's will has lapsed. It has been argued by his counsel that the legacy was intended for St. Paul's School, Calcutta; that the school came to an end; and following the principle laid down in Clark v. Taylor 1 Drew 642; Russell v. Kellett 3 Sm. and G. 264; and & Fisk v. The Attorney-General L.R. 4 Eq. 521 the object of the bequest having disappeared, it must lapse, and that he, as son of the testator, becomes entitled to the fund. Now the question depends, as has been all along admitted by counsel on both sides, entirely on the construction of para. 5 of the will.
2. Counsel are not at issue on any question of law.
3. I think, on looking at all the terms of this paragraph of the will, I must bold that the intention of the testator was not to make a gift either to or for the benefit of the school but for the furtherance of the education of the sort of persons described in the paragraph as 'two or more boys, natives of Calcutta, of poor and indigent parents, or fatherless children, of the Armenian or other Christian religion.'
4. In the first place there is no bequest of the money to the school at all. There is simply a direction that the trustees, or rather the executors, shall invest Rs. 7,000 in Company's paper, stand possessed thereof, and by means of the income provide a fund for or towards the education of boys of the description mentioned at St. Paul's School, Calcutta.
5. Not merely is there no bequest to the school, but the will contains directions as to what the boys are to get as objects of the testator's bounty, that is education; and that education they are to have, by its being paid for at St. Paul's School, Calcutta. It appears to me that to bring the case within the scope of the cases cited it would be necessary that the money should pass to the institution, which, it is suggested by the plaintiff's counsel, was the object of the bequest. That is not what is done in this paragraph, I think that the name of the school is introduced in two places in the will--once with the object of directing that the education contemplated shall be obtained there. He appears to use a reference to St. Paul's School, Calcutta, in a subsequent part of the will as an indication of the standard of education he wishes the objects of the bounty in that part of the will to receive, and I so use it here. Holding, therefore, that the bequest is not to an institution such as the school, the case does not fall within the authorities cited, and therefore I cannot hold that the legacy has lapsed. It is not necessary now to decide the question argued by Mr. O'Kinealy, and discussed by Mr. Hill, as to whether the St. Paul's School at Darjeeling is a continuation of the school which existed in Chowringhee twenty years ago. I must have done so had I been with the plaintiff in his construction of the 5th para, of the will; as I am not, and having regard to the view I entertain of the other part of the case, it is not necessary to determine this question. It appears to me, that whether or not the Darjeeling school is the same institution as existed in 1863 in Calcutta, if it be the case that the education there given cannot under the circumstances be given to children answering the description of the objects of the testator's bounty, that the doctrine of cypres must come in, and it appears on facts admitted that that is so. The object of the testator, as I understand it, was to provide education for two or more boys, natives of Calcutta, children of poor and indigent parents, or fatherless children, of the Armenian or other Christian religion.
6. Now it is clear that this small endowment, on the face of it, is insufficient to provide the expenses of even one boarder at the Darjeeling school as it now stands. It was insufficient to defray the expenses of one boarder in the school at Calcutta as it was in 1862-63. I cannot but suppose that the testator, when he fixed the purpose to which the fund was to be applied, knew the circumstances of the charges made at the school at that time, as given in evidence here, and knew that the fund could not be applied for children to board at the school. I think, taking all the facts into consideration, that he must have contemplated the education of children as day-scholars only or as day-boarders such as were attending school at that time, and for such purpose I think the fund must now be applied.
7. The character of the education given at St. Paul's School, Darjeeling, is, I am satisfied, such as the testator would have wished, that I hold to have been an education at a school where religious teaching was imparted according to the form of belief of the English Protestant Church. I do not intend to exclude the possibility such as has been suggested by Mr. Hill, that should there be found some other fund, and the persons at whose disposal such fund is should be willing to supplement the fund in this suit, so as to provide for the education of the boys in Darjeeling. If that could be done, no doubt, the object of the testator would be amply satisfied. That can be inquired into in the reference which I must order. When I say I conclude that the testator contemplated at best day-boarders only, though he has not actually specified that class, I do so on the assumption that he can get nothing better than that sort of education for the available income.
8. There must be a reference to the Registrar to report on the question in what manner the wishes of the testator can be best carried out, having regard to the decision I have come to.