the

established principle of equity, that every claimant upon assets of a deceased person shall be satisfied so far as such assets can, by any mode of arrangement consistent with the respective claims, be applied in satisfaction thereof; hence, where there are two claimants, and one of them has more than one fund to resort to, and the other claimant only one, the first claimant will be compelled to resort to that fund on which the second has no lien, where such a course becomes necessary for the satisfaction of both the claims: (Gibson v. Seagren, 20 Beav. 614.) Thus, if there is a debt due to the King, a court of equity will marshal the assets by directing it to be paid out of the real estate, so that the other creditors may have satisfaction out of the personal estate (1 Ventr. 445.) And in like manner, where the deceased died before the act 3 & 4 Will. 4, c. 104, came into operation, if a specialty creditor, whose debt was a lien on the real estate, received satisfaction out of the personal assets, a simple contract creditor, who had no other fund than the latter to resort to, was allowed to stand in the place of the specialty creditor as against the real assets, so far as the latter should have exhausted the personal estate in payment of his specialty debt (Selby v. Selby, 4 Russ. 341; Toll. Exors. 419); and the rule was exactly the same with respect to real assets devised as to those descended: (Id. ib.) And, it seems, that if, since the above-mentioned act of 3 & 4 Will. 4, c. 104, came into operation, and by which the real estate is made liable to simple contract debts, a simple contract creditor should receive satisfaction out of the personal estate, and thereby exhaust it, that the legatees would be allowed to stand in his place as against the real assets which have descended (Wms. Exors. 1552, 5th edit.); for wherever there is a deficiency created in the personal estate by the payment of specialty debts, equity interposes, and directs that the legatees who have only the personal fund to resort to, shall stand in the place of those creditors who have been paid out of the personal assets. But this equity, so far as relates to general legacies, only extends as against the lands descended (Keeling v. Brown, 5 Ves. 359), and not as against the lands devised, whether such lands be devised specifically, or comprised in a general devise of the residue of the testator's real estate (Mirehouse v. Scarfe, 2 M. & Cr. 695), unless the lands be expressly charged with debts; but if so charged, then the assets will be marshalled; for lands so charged are applicable to the payment of debts before general pecuniary legacies: (Surtees v. Packin, 19 Beav. 406.)

[P. C.-vol. ii.]

4 I

As to specific legacies.]—With respect to specific legacies the rule appears to be, that the assets shall be so far marshalled against the devisees of the real estate, as that upon the failure of the general personal estate, the devisee and specific legatee shall, each in proportion to their respective gifts, contribute to the payment of the specialty debt: (Gervis v. Gervis, 14 Sim. 654.)

Assets marshalled in favour of legatee where some are charged on real estate, and others not so charged.]-Assets will also be marshalled in favour of legatees where one or more legacies are charged on the real estate, and there is another legacy which is not so charged, in which case the legatee whose legacy is not so charged, will stand in the place of the former legatees to be satisfied out of the real assets: (Bonner v. Bonner, 3 Ves. 379.) Neither is there any distinction between the case of a class of legacies, and a case of individual legacies; for the court presumes that the testator's intention in charging the lands is, that all the legacies shall be paid in full: (Scales v. Collins, 9 Hare, 656; Wms. Exors. 1156, note k.)

Assets will not be marshalled in favour of a charitable bequest.]-A court of equity will not marshal assets in favour of a charitable bequest, so as to give it effect out of the personal assets, it being void so far as it touches any interest in land or in things savouring of the realty: (Sturge v. Dimsdale, 6 ib. 462.)

CHAPTER IX.

CHARITABLE USES.

It seems that gifts in mortmain were prohibited by Magna Charta, yet that no restraint whatever was imposed upon devising lands to charitable uses by the Statute of Wills (32 Hen. 8, c. 1, explained by statute 34 & 35 Hen. 8, c. 5), and the statute 43 Eliz. c. 4, even tended to encourage dispositions of this kind: (Attorney-General v. Burdett, 2 Ves. 755.) But as devises to charitable uses, like all other gifts of lands in mortmain, rendered the property for ever unalienable, great public inconvenience must eventually have ensued if dispositions of this kind had been carried on to any considerable extent; which in course of time became so obvious, that the Legislature at length thought proper to interfere and put a proper check upon gifts of this nature. This was carried into effect 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.]-This 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 the public mischief had 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 disherison 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, assigned, transferred 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 whatever, or any ways 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 the 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 for the charitable use intended immediately from the making thereof, and be without any power of revocation, trust, condition, limitation, clause or agreement whatsoever, for the benefit of the donor or grantor, or of any other person or persons claiming under him: (sect. 1.)

By the three next sections (2, 3, and 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 of the scholars upon the foundation of the same Colleges; or to the disposition of any real or personal estate in Scotland.

What particular kinds of property are within the scope and operation of the act.]-With respect to the kind of property prohibited to be given by will to charities, it is quite clear that copyholds, and even leasehold estates for years, are within the operation of the act, which in fact comprehends every species of property which savours of the realty: (Howse v. Chapman, 4 Ves. 542.) So, also, moneys secured upon turnpike tolls (Knapp v. Williams, 4 Ves. 430), shares in the Grand Junction Waterworks Company (Ware v. Cumberland, 25 L. T. Rep. 138), or by an assignment of poor rates, or county rates (Finch v. Squire, 10 Ves. 41), or any money secured upon mortgages of real property of every kind or

description, whether corporeal or incorporeal, and whether consisting of a freehold, or of a mere chattel interest (Attorney-General v. Earl of Winchelsea, 3 Bro. C. C. 373), moneys secured by rates levied under a local act for building a town-hall, and recoverable by distress (Thompson v. Kempson, 23 L. T. Rep. 136), and even judgment debts, so far as they operate as an actual charge upon the land, will come within the scope and operation of the act: (Negus v. . Coulter, Wms. Exors. 778, 2nd edit.) In Howse v. Chapman, above referred to, it was held that a devise of canal shares was within the statute, which, upon the same principle, would seem also to include railway shares; but in a more recent case (Re Langham's will, 22 L. T. Rep. 63), a distinction was taken between a gift of the shares themselves, and of a sum of money secured by way of mortgage upon the same shares. In the case last alluded to, A. by will gave to a charity 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 the bequest, as in the mortgage of such shares, was held to be within the Statute of Mortmain.

What kind of interests do not come within the operation of the act.]-It appears to have been established by several of the more modern decisions, that such shares held under public companies as do not savour of the realty, will not fall within the scope of the act, and this the more particularly as most, if not all the acts of Parliament by which these companies are constituted, negative in the most express and positive terms the qualities of real estate from being applicable to the shares; and by the 7th section of the Companies Consolidation Act (8 Vict. c. 16), it is expressly declared "that all shares in the undertaking shall be personal estate, and transmissible as such, and shall not be in the nature of real estate." Thus it has been held that the shares in a gas-light company (Spurling v. Parker, 9 Beav. 450), and of shares in a dock company (Hilton v. Girard, De Gex & Sm. 183), and 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, also (above referred to), which arose out of a bequest of shares in the London Dock Company and West India Dock Company, Sir J. Knight Bruce, V.C., said: "I am of opinion that stock in the incorporated companies in ques