No. XXIII. WILL, BEQUEATHING 1,500l., TO BE INVESTED IN STOCK, AND c. 36. Charitable uses. (a) The Statute of Wills (32 Hen. 8, c. 1, explained by stat. 34 & 35 Hen. S, Stat. 9 Geo. 2, c. 5,) imposed no restraint upon devising lands to charitable uses; and the statute 43 Eliz. c. 4, tended even to encourage dispositions of this kind: (Flood's case, Hob. 136; Collinson's case, id. ib.; Attorney-General v. Rye, 2 Vern. 453; Attorney-General v. Burdett, ib. 755; Rivett's case, 3 Cha. Rep. 220; S. C., Moor, 890, pl. 1253.) But as devises to charitable uses, like all other gifts of land in mortmain, rendered the property for ever unalienable, great public inconvenience must eventually have ensued if dispositions of this kind had been carried to any considerable extent, which at length became so apparent that the Legislature thought proper to put a proper check upon gifts of this nature. This was effected by the statute 9 Geo. 2, c. 36, commonly, though not very accurately, called "The Statute of Mortmain." Statute of Mortmain, 9 Geo. 2, c. 36. The above-mentioned statute, after reciting that gifts or alienations in mortmain were prohibited by Magna Charta and divers other wholesome laws, as prejudicial to, and against the common utility; nevertheless, that public mischief had of late greatly increased by large and improvident alienations or dispositions made by languishing or dying persons, or by other persons, to uses called charitable uses, to take place after their deaths, to the disinherison of their lawful heirs, for remedy whereof it is enacted, that from and after the 24th day of June, 1736, no manors, lands, rents, tenements, advowsons, or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money. goods, chattels, stock in the public funds, securities for money, or any other personal estate whatsoever, to be laid out and disposed of in the purchase of any lands, tenements, or hereditaments, shall be given, granted, aliened, limited, released, transferred, assigned, or appointed, or in anywise conveyed or settled, to or upon any person or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or anyways charged or incumbered by any person or persons whatsoever, in trust, or for the benefit of any charitable uses whatsoever, unless such gift, conveyance, appointment, or settlement of any such lands, tenements, or hereditaments, sum or sums of money, or other personal estate (other than stock in the public funds), be made by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at least before the death of such donor or grantor (including the days of execution and death), and be enrolled in the High Court of Chancery within six calendar months next after the execution thereof; and unless such stock be transferred in the public books usually kept for the transfer of stock six calendar months at least before the death of such donor or grantor (including the days of transfer and death), and unless the same be made to take effect in possession BEQUEST OF 1007. TO BE INVESTED IN THE FUNDS, AND WILLS. No. XXIII. Will bequeathing for the charitable use intended immediately from the making thereof, and be, Sums of Money, without any power of revocation, reservation, trust, condition, limitation, clause, to be invested or agreement whatsoever, for the benefit of the donor or grantor, or of any other in Stock, person or persons claiming under him: (sect. 1.) In Way v. East, 22 L. T. for Charitable Rep. 156, A. granted an annuity out of leaseholds to trustees for charitable Purposes. purposes. It was done by indenture, duly enrolled, and made twelve months before A.'s death. He kept the deed for eleven years after its execution, and gave a cheque for the amount of the annuity, which cheque, however, he subsequently received back. The evidence proved a secret understanding between the parties, and a design in A.'s mind that the annuity should not be claimed in his lifetime. It was held to be a void gift, and that to bring the case within the Mortmain Act it was not necessary that the design should appear on the instrument. By the three next sections (sects. 2, 3, 4,) the act is declared not to extend to purchases for a valuable consideration actually and bona fide made; nor to dispositions to or in trust for either of the two English Universities, or for the Colleges of Eton, Winchester, or Westminster, for the better support and maintenance of the scholars upon the foundation of the same colleges; or to the disposition of any estate, real or personal, lying or being in Scotland. to charitable This wise provision of the Legislature does not absolutely prohibit a gift of How lands may lands to charitable uses, but merely interposes a wholesome restraint upon the now be given too free alienation of lands for purposes of this kind, by which persons under a mistaken notion of religion, bestowed their lands upon charities to operate after uses. their deaths, to which they paid no regard whatever whilst living; and therefore a donor may still give lands to charitable uses, provided he does so by deed to take effect immediately in his lifetime; which restriction, as to the mode of giving, which can be only effected at the sacrifice of the donor's personal enjoyment of the property, has proved a sufficient test of the sincerity of the true impelling motives of gifts of this description, to dispel all apprehensions of any public mischief likely to arise from the too frequent exercise of the power of donation which the statute still permits. act. With respect to the kind of property prohibited to be given by will to What kinds of charities, it is quite clear that copyholds and even leasehold estates for years are property are within the operation of the act, which in fact extends to every species of property within the which savours of the realty (Howse v. Chapman, 4 Ves. 542); hence, moneys scope and secured upon turnpike tolls (Knapp v. Williams, 4 Ves. 430); shares in the operation of the Grand Junction Waterworks Company (Ware v. Cumberland, 25 L. T. Rep. 138; see also 10 Ves. 44; Ram. on Assets, 431; Howse v. Chapman, 4 Ves. 542), or by an assignment of poor rates, or county rates (Finch v. Squire, 10 Ves. 41), or any moneys secured upon mortgages of real property of any kind or description, whether in fee, or for a term of years (Attorney-General v. Earl of Winchelsea, 3 Bro. C. C. 373); moneys secured by mortgage of rates levied under a local act for building a town-hall, and recoverable by distress (Thomson v. Kempson, 23 L. T. Rep. 186); and even judgment debts, so far as they operate as an actual charge of the land, will all come within the scope and operation of the statute; as does also the right of laying down mooring chains in the river Thames: (Negus v. Coulter, Wms. Exors. 778, 2nd edit.) In Howse v. Chapman (4 Ves. 542), it was held that a devise of canal shares was within the statute, which upon the same principle would seem to include also railway shares. But in the recent case of Re Langham's Will, 22 L. T. Rep. 63, where A. by will gave to a charity some canal shares, which were declared by act of Parliament to be personal estate; and also a sum of money, secured by mortgage of tolls of the same canal, the gift of the shares was held to be good, but that the mortgage was within the Statute of Mortmain. But the more recent cases on the subject seem to have determined that shares What interests of the latter kind, as they do not savour of the realty, do not fall within the do not come WILLS. No. XXIII. Will bequeathing act. TRIBUTED IN PENNY LOAVES WEEKLY AMONGST SUCH Sums of Money, scope of the statute, and this more particularly as most of the acts by which to be invested these companies are constituted, negative in the most positive and express terms in Stock, the quality of real estate as applicable to the shares; and by the 7th section of for Charitable the Companies Consolidation Act (8 Vict. c. 16.) it is expressly declared that Purposes. all shares in the undertaking shall be personal estate, and transmissible as such, and shall not be of the nature of real estate." Thus it has been held within the that the shares in a gas-light company (Spurling_v. Parker, 9 Bea. 450), and operation of the shares in a dock company (Hilton v. Girard, 1 De Gex & Sm. 183), policies of assurance, by which the directors engage to pay out of the funds, are not considered as savouring of the realty, although in the latter instance the assets of the assurance company_consist in part of real estate: (March v. Attorney-General, 5 Beav. 433.) In Hilton v. Girard, above referred to, which arose out of a bequest of shares in the London Dock Company and West India Dock Company, Sir Knight Bruce, V.-C., said :-"I am of opinion that stock in the incorporated companies in question, in which the shareholders are interested in the profits to be made, is not to be considered as estate, interest, or hereditaments,' within the meaning of the act of King George 2. The charity is therefore entitled." East India stock has been clearly held not to be within the Statute of Mortmain: (Attorney-General v. Giles, 5 L. J. (N.S.) 44, Ch.) Lien of testator on the lands It has, however, been decided that where a testator who has bequeathed all his personal estate to charities, afterwards contracts to sell any of his lands, the sold for his lien which he has upon the property sold for his unpaid purchase-money, will unpaid be an interest in land within the meaning of the statute, and will not pass with purchase-money the rest of the personal estate; (Harrison v. Harrison, 1 Russ. & Myl. 71.) is an interest in sale of real estate. And where A. being entitled to certain sums of money which were to be raised by the execution of a trust for sale of real estate, bequeathed all his personal estate to B.; B. bequeathed the residue of her personal estate to a Proceeds of the charity. It was contended that as the period for raising the sums in question had arrived in the lifetime of B. (although they were not actually raised until after her decease), it was a breach of duty in the trustees not to raise them, and this neglect ought not to invalidate the gift, especially as the charities had no right to take it as land; but Sir John Leach, V. C., held, that these sums, constituting an interest in land at the testator's death, could not be legally given to charities: (Attorney-General v. Harley, 5 Madd. 321.) And, notwithstanding the Mortmain Act contains no express words prohibiting a bequest of money arising out of a sale of lands, it is quite clear that such a bequest is within the spirit and meaning of the enactment: (Trustees of the British Museum v. White, 2 Sim. & Stu. 595.) But if a pecuniary gift to a charity is charged partly upon real, and partly upon the personal estate it will be good pro tanto, or in other words, it will be good as far as the charge on the personalty extends, but void as to the charge upon the lands: (Waite v. Webb, 6 Mad. 71.) Assets not marshalled in favour of It appears to be now a fixed rule of equity that assets will never be marshalled in favour of a charity: (Attorney-General v. Tyndall, 2 Eden, 207; Makeham v. Hooper, 4 Bro. C. Č. 153.) A learned writer on the law of assets charitable uses. observes (Ram. on Assets, 430), that formerly a distinction appears to have been taken between the bequest of a legacy and of the residue. For when a person bequeathed a legacy out of personal estate to charitable uses, and bequeathed other legacies out of his personal estate, and, in aid of the personalty devised real estate, in trust for, or charged with, the payment of debts and legacies; in this case, there being two funds applicable to pay the debts and legacies, a Court of Equity did marshal the assets in favour of the charity by throwing over the legacies (Ambl. 158, 217; 2 Eden, 211), or, as the case might be, both debts and legacies on the real estate: (Ambl. 25.) On more than one occasion Lord Hardwicke stated, and in this doctrine Lord North OF THE PARISH FOR THE TIME BEING MAY CONSIDER MOST WILLS. No. XXIII. Will bequeathing ington, it should seem, concurred (2 Eden, 211), that, "when there are general Sums of Money, legacies, and the testator has charged his real estate with the payment of all to be invested his legacies, if the personal estate is not sufficient to pay the whole, the court in Stock, has said the legacy to the charity shall be paid out of the personal estate, for Charitable and the rest out of the real estate, that the will of the testator may be performed in toto:" (Ambl. 158, 217.) Purposes. A bequest payable out of personal estate is clearly good, but if given to be Bequests of laid out in the purchase of lands, it will then come within the very words of personal estate the act, and even a recommendation to purchase lands will be considered to charities equally imperative as a direct command to that effect, and the bequest will may be good. be invalidated accordingly: (Attorney-General v. Davies, 9 Ves. 546.) But it seems that if an option is given to the trustees, either to lay out the money, in lands, or to invest it in the funds, the bequest will be unaffected by the statute (Soresby v. Hollins, Ambl. 212); but if the ultimate direction is the purchase of lands, a mere direction that the moneys shall be invested in the funds until an eligible purchase can be found, will be insufficient to protect the bequest from the operation of the statute: (Grieves v. Case, 4 Bro. C. C. 67; Pritchard v. Arbouin, 3 Russ. 458.) Still, if the object of the charity can be accomplished without purchasing land, then the bequest may be effectual; as, for example, where personal estate is given for the perpetual endowment of a school, the bequest may be supported, for non constat that land must necessarily be purchased for that purpose, as the same object may be obtained by renting premises for the purpose, or the master might teach in his own house: (Kirkbank v. Hudson, 7 Pri. 221; Hill v. Jones, 23 L. T. Rep. 253.) The Mortmain Act does not apply to lands situated in New South Wales (Whicker v. Hume, 18 L. T. Rep. 325.) But a bequest of money directed to be laid out in rebuilding or repairing that Whether a which is already in mortmain will be supported; as, in or towards rebuilding a bequest to church, or repairing a free chapel, or a parsonage house, or in rebuilding any repair or rebuild building devoted to charitable purposes; for none of these gifts come within the premises operation of the act (Attorney-General v. Parsons, 8 Ves. 186); for no additional already in land is thereby converted into mortmain. mortmain is within the act. Whether a bequest, to be applied in discharge of incumbrances, It seems, however, that a direction annexed to a pecuniary bequest to charities, that it shall be applied in the discharge of existing incumbrances charged upon charity property, will be considered as appropriating to the charity a new interest in land within the meaning of the act; as, where a bequest was made of a sum of money to be applied in paying off a mortgage-debt on a meeting-house, it was, for the reasons above mentioned, decided that the bequest could not be supported (Corbyn v. French, 4 Ves. 418); and the circumstance that the charge the operation of is a mere equitable incumbrance will in nowise vary the case: (Waterhouse v. the act. Holmes, 1 Sim. 162.) comes within Neither can the operation of the Mortmain Act be evaded by any secret trust, Mortmain Act and the testator's heir may compel a devisee to disclose any promise which he cannot be may have made to the testator with respect to devoting the devised lands to any evaded by charitable purposes: (Boson v. Statham, 1 Eden, 508; Paine v. Hall, 18 Ves. secret trust. 475.) And should the devisee deny that he has ever made a promise of the kind, extrinsic evidence may be admitted to prove the fact (Edwards v. Pike, 1 Cox, 17); and if such secret trust can by any means be established it will be sufficient to vacate the devise, and thus let in the title of the heirat-law. Where a charity is the general object of the bequest, it will not altogether Of the cy pres fail by reason that the charity to which it is devoted has ceased to exist, or a doctrine, as refusal to accept the proffered bounty; or even where the object of it is contrary applicable to to law, or the established religion of the land; but in all such cases, it will charitable devolve upon the Crown to appoint the fund, by sign manual sent to the bequests. Attorney-General, to other charitable purposes corresponding as nearly as may WILLS. No. XXIII. Will bequeathing LIKE MANNER, AND THE DIVIDENDS APPLIED IN KEEPING Sums of Money, be to the testator's original intention: (Attorney-General v. Glasgow College, to be invested 10 Jur. 676.) in Stock, But, notwithstanding, where charity is the evident object of the bequest, it for Charitable will not be allowed to fail of effect, because the charity cannot be carried out Purposes. to the very letter. Still cases have sometimes occurred in which a testator has expressed himself in so vague or ambiguous a manner that it has been impossible to ascertain that any known charity was his object, in which case the bequest has necessarily been holden void, and the beneficial interest has in consequence devolved upon the next-of-kin. Thus, a bequest to the Bishop of Durham "to dispose of to such objects of benevolence and liberality as he should approve," was considered too vague to amount to a charitable bequest, and therefore the bishop was holden to be a trustee for the next-of-kin: (Morice v. Bishop of Durham, 9 Ves. 408; S. C., 10 Ves. 532.) Where a charity is too vaguely expressed, it will fail of effect altogether. What donations And upon precisely the same principle it was subsequently determined that a bequest for such charitable or other purposes as the trustees should think fit, was altogether void for uncertainty: (Ellis v. Selby, 7 Sim. 352.) And where a testatrix declared that she wished certain moneys which she specified “to be given in private charity," Sir T. Plumer, M. R., held that the words did not create such a trust as could be carried into effect. The charities recognised by the court were public in their nature, and such as the court could see to the execution of; but here the disposition was confined to private charity. Assisting individuals in distress was private charity; but such a purpose could not be executed by the court, or by the Crown: (Ommaney v. Butcher, Turn. & Russ. 260.) And in a still more recent case (Kendall v. Granger, 5 Beav. 300), Lord Langdale, M. R., held, that a bequest to trustees to be applied for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility, to be altogether void as a charitable bequest. It now remains for us to point out what donations are considered as gifts to charitable uses, within the Statute of Mortmain (9 Geo. 2, c. 36.) In the statute 43 Eliz. c. 4, gifts for the relief of aged, impotent and poor people, for maintenance of sick and maimed soldiers and mariners, for ease of poor Mortmain Act. inhabitants concerning payment of taxes, for aid of young tradesmen, handicraftsmen, and persons decayed, for relief, stock, and maintenance of houses of correction, for marriage of poor maids, for education and preferment of orphans, for schools of learning, free schools, and scholars in universities, for relier and redemption of prisoners and captives, for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways, are all enumerated as charities (Wms. Exors. 781); and all bequests for any such purposes, or purposes of a like nature, are considered as bequests to charitable uses within the Statute of Mortmain. Hence, not only bequests for the relief and education of the poor, as by means of schools (Attorney-General v. Nash, 3 Bro. C. C. 588); or hospitals (Pelham v. Anderson, 2 Eden, 296); or to the poor inhabitants not receiving alms of a particular parish (Attorney-General v. Clarke, Ambl. 422); or to the widows and children of seamen belonging to a particular place (Powell v. Attorney-General, 3 Mer. 48); and to the widows or orphans of the parish of A. (Attorney-General v. Comber, 2 Sim. & Stu. 931); but also all bequests for public purposes, conferring a public benefit, whether local or general (Attorney-General v. Pearce, 2 Atk 88); as a bequest to the British Museum (British Museum v. White, 2 Sim. & Stu. 59); or for the erection or improvement of water-works for the use of the inhabitants of a particular town or city (Jones v. Williams, Ambl. 651); or of a perpetual botanical garden for the public benefit (Townley v. Bedwell, 6 Ves. 194); or for the general improvement of a town or city (Howse v. Chapman, 4 Ves. 542); or for the establishment of a life-boat (Johnson v. Swann, 3 Mad. 457); and likewise bequests for the promotion of the Protestant religion, as for the advancement of the Christian religion amongst infidels (Attorney-General v. Virginia College, 1 |