there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.

ESTATE OF TRUSTEES.

trustees or executors, except for a term or a presentation to a church, shall pass a chattel

XXX. (x) And be it further enacted, That where any real estate (other than or not being a presentation to a church) shall No devise to be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication.

ESTATE OF TRUSTEES.

interest.

Trustees under

an unlimited devise, where the trust may endure beyond

XXXI. (y) And be it further enacted, That where any real estate shall be devised to a trustee without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied.

LAPSE OF ESTATE TAIL.

the life of a person bene

ficially entitled for life, to take the

fee.

estates tail shall not

XXXII. (2) And be it further enacted, That where any person to whom any real estate shall be devised for an estate tail or an estate Devises of in quasi entail shall die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, lapse, when. such devise shall not lapse, but shall take effect as if the death of such person * had happened immediately after the death of the testa- [*1691] tor unless a contrary intention shall appear by the will.

LAPSE

CHILDREN OR ISSUE DYING IN TESTATOR'S LIFEtime.

Gifts to children or other issue who

XXXIII. (a) And be it further enacted, That where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

leave issue living at the testator's

death shall not lapse.

Act not to

WHEN ACT OPERATES.

XXXIV. And be it further enacted, That this Act shall not extend to any will made before the first day of January, one thousand eight hundred and thirty-eight, and that every will re-executed (b) or re-published, or revived by any codicil, shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived; and that this Act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight.

extend to wills
made before
1838, nor to
estates pur
autre vie of
persons who
die before
1838.

Act not to extend to Scotland.

SCOTLAND.

XXXV. And be it further enacted, That this Act shall not extend to Scotland.

(b) p. 160.

THE MORTMAIN AND CHARITABLE USES ACT, 1891.

SINCE the first sub-division of the ninth chapter of this treatise passed through the press, an Act of Parliament (a) has come into operation the short title of which is " The Mortmain and Charitable Uses Act, 1891," and which materially alters, and, indeed, puts on an entirely new footing, the law on the important question as to what property may be given by will to charity.

Alteration in
the law as to

gifts to
charity.

It will be convenient in this place to state in full the recent Act, and then to consider its provisions in detail. This Act is as follows:

54 & 55 VICT. c. 73.

An Act to amend the Mortmain and Charitable Uses Act, 1888, and the Law relating to Mortmain and Charitable Uses.

5th August, 1891.

BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

§ 1. This Act may be cited as the Mortmain and Charitable Uses Act, 1891.

Short title.

Extent of
Act.

Definition of
"land."

§ 2. This Act shall not extend to Scotland or Ireland (b). § 3. "Land" in the Mortmain and Charitable Uses Act, 1888, and in this Act, shall include tenements and hereditaments, corporeal or incorporeal, of any tenure, but not money secured on land or other personal estate arising from or connected with land; and the definition of land contained in the Mortmain and Charitable 51 & 52 Vict. Uses Act, 1888, is hereby repealed (c).

c. 42.

66

assurance."

§ 4. In this Act the word "assurance" shall have the Meaning of same meaning as in the Mortmain and Charitable Uses Act, 1888 (d).

(a) 54 & 55 Vict. c. 73.

(b) As to testamentary gifts of land and money to be laid out in land in Scotland and Ireland for charitable purposes, see ante, p. 201.

(c) I. e. "for the purposes of this Act." The definition and repeal contained in this section are, in common with the remainder of the Act, confined by s. 9 in their operation to wills of testators dying after the passing of the Act. As regards conveyances inter vivos no less than as regards wills of persons dying before the passing of this Act, the definition of land contained in the Act of 1888 remains in full force, and such assurances are still subject to the restrictions imposed by the last named Act, as to which see ante, p. 179. (d) See this definition stated ante, p. 179, note (a).

Land assured
by will for
a charitable
purpose to
be sold.

§ 5. Land may be assured by will to or for the benefit of any charitable use, but, except as hereinafter provided such land shall, notwithstanding anything in the will contained to the contrary, be sold within one year from the death of the [*1693] testator, or such extended period as may be determined by the High Court, or any judge thereof sitting at chambers, or by the Charity Commissioners.

Land after expiration of time limited for sale to be sold by order of Charity Commissioners.

§ 6. So soon as the time limited for the sale of any lands under any such assurance shall have expired without completion of the sale of the land, the land unsold shall vest forthwith in the official trustee of charity lands, and the Charity Commissioners shall take all necessary steps for the sale or completion of the sale of such land to be effected with all reasonable speed by the administering trustees for the time being thereof, and for this purpose the said Commissioners may make any order under their seal directing such trustees to proceed with the sale or completion of the sale of the said land or removing such trustees and appointing others, and may provide by any such order for the payment of the proceeds of sale to the official trustees of charitable funds in trust for the charity, and for the payment of the costs and expenses incurred by the said administering trustees in or connected with such sale, and every such order shall be enforceable by the same means and be sub16 & 17 Vict. ject to the same provisions as are applicable under the Charitable c. 137. Trusts Act, 1853, and the Acts amending the same, respectively,

to any orders of the said Commissioners made thereunder.

Personal

estate by

will directed to be laid

out in land

not to be so laid out.

Power to retain land in certain cases.

§ 7. Any personal estate by will directed to be laid out in the purchase of land to or for the benefit of any charitable uses shall, except as hereinafter provided, be held to or for the benefit of the charitable uses as though there had been no such direction to lay it out in the purchase of land.

§ 8. It shall be lawful for the High Court, or any judge thereof sitting at chambers, or for the Charity Commissioners, if satisfied that land assured by will to or for the benefit of any charitable use, or proposed to be purchased out of personal estate by will directed to be laid out in the purchase of land, is required for actual occupation for the purposes of the charity and not as an investment, by order to sanction the retention or acquisition, as the case may be, of such land. Application § 9. This Act shall only apply to the will of a testator dying of Act. after the passing of this Act.

§ 10. Nothing in this Act contained shall limit or affect the exemptions contained in Part Three of the Mortmain and Charitable Uses Act, 1888, or apply to any land or personal estate to be laid out in the purSaving. chase of land acquired under any assurance to which such exemptions or any of them apply, or shall exclude or impair any jurisdiction or authority which might otherwise be exercised by a court or judge of competent jurisdiction or by the Charity Commissioners.

It has been seen that under the Mortmain Act of Geo. 2 (e) and also under the Mortmain and Charitable Uses Act, 1888 (f), testamentary gifts for charitable purposes of land or any estate or interest therein, or of money to be laid out in the purchase of, or secured on land

General effect of the Act.

(e) 9 Geo. 2, c. 36, ante, p. 178.

(f) 51 & 52 Vict. c. 42, ante, p. 179.

or of any personalty savoring of land or of any property to be applied for purposes necessarily involving the acquisition of land were, with certain special exceptions, void. The recent Act has entirely altered the state of In the first place, it renders lawful chari- [*1694] table gifts by will of land, provided only that land so given must not, except in certain special cases, be retained by the charity, but must be sold within a limited period (g).

the law in this * respect.

Charitable devises of land.

Distinction between pure and impure personalty abolished.

This Act also, by substituting a new definition of "land" for that given by the Act of 1888, does away with the former distinction between pure and impure personalty for the purposes of testamentary gifts to charitable uses, and renders such gifts of any personal property valid equally, and, except as regards leaseholds, without restriction. Moreover, the Act provides that in case of personal property being given by will to or for the benefit of a charity, with a superadded direction for its application in the purchase of land, the direction shall be disregarded, and the gift shall be good released from the direction.

Directions to purchase land.

It is obvious that the result of these changes in the law is to do away with the necessity of inserting in wills containing charitable gifts any direction for the marshalling of the testator's property for Marshalling of the purposes of such gifts. And where a charitable legacy is given free of duty, the duty may now be paid out of impure Legacy duty. personalty.

assets.

It will be observed that by the definition given in the 3d section, "land,” for the purposes of the Act, includes "tenements and hereditaments of any tenure (h)." It would seem clear that leasehold lands must be deemed to be included in this definition, so as to subject a testa- As to leasementary gift of such to charitable uses to the restrictions as to sale imposed by this Act (i).

holds.

Bequests of money secured on land, &c.

The exclusion from this definition of "land" of "money secured on land or other personal estate arising from or connected with land" renders impure personalty (other than leaseholds) capable of being freely and effectually given by will to charity. Thus charitable bequests of money secured on mortgage of land whether in fee or for years, or by deposit of title deeds, and of arrears of interest on any such mortgage, and of money charged by way of mortgage, or sums invested on any such mortgage, also charitable bequests of money secured by judgments charging land or by vendor's lien - all of which gifts were formerly void - are now rendered valid as regards wills of testators dying after the passing of the Act. So also, a charitable gift may now be made by will of or out of the proceeds of land devised on trust for sale. And the fact that a sum of money bequeathed to charity is to be raised by sale of lands which have not been sold at the testator's death will not avoid the gift.

As regards the benefit of the security, when money secured by mortgage is given by will to charity, the position would now seem to be as follows: - The legal estate in the mortgaged land, that is to say, the land itself at law, subject to the equitable right of redemption subsisting in the mortgagor, will immediately on the death of the testator (g) S. 5.

Moneys secured by mortgage.

(h) In strictness it would seem that "tenements" mean property whereof a man is seised ut de libero tenemento, Co. Lit. 19 b. The word has however come to have a more general signification. including land or any interest therein, see Burton's Compendium, 1.

(i) By the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 3, "unless the contrary intention appears," the expression "land" in all Acts of Parliament passed since 1850 includes messuages, tenements, and hereditaments.