testators by rendering valid devises to those uses by a tenant in tail. At the commencement of the eighteenth century however, the tide of public opinion appears to have flowed in an opposite direction, and the legislature deemed it necessary to impose further restrictions on gifts to charitable objects; from the nature of which it may be presumed that the practice of disposing by will of lands to charity had antecedently prevailed to such an extent as to threaten public inconvenience. It appears to have been considered that this disposition would be sufficiently counteracted by preventing persons from alienating more of their lands than they chose to part with in their own lifetime; the supposition evidently being that men were in little danger of being perniciously liberal at the sacrifice of their own personal enjoyment, and when uninfluenced by the near prospect of death. Accordingly the statute of 9 Geo. 2, c. 36 (usually but rather inaccurately called the statute of mortmain), enacted that no hereditaments should be given, conveyed or settled to or upon any persons, bodies politic or corporate, or otherwise for any estate or interest whatsoever, or any ways charged or encumbered in trust or for the benefit of any charitable uses whatsoever, unless such gift or settlement of hereditaments or personal estate (other than stocks in the public funds,) be made by deed, indented, scaled and delivered in the presence of two credible witnesses, twelve calendar months before the death of the donor, including the days of the execution and death, and enrolled in chancery within six calendar months after the execution, and unless such stocks be transferred six calendar months before the death.

1. Jarman on Wills, p. 244 [198].

"The statute it is clear extends to property of every descrip"tion which savors of the realty.

"Where lands are devised in trust for a charity the trust not only is itself void, but vitiates the devise of the legal estate on "which it is engrafted.

Though the Statute does not in terms apply to the proceeds "of land directed to be sold, yet it is settled by construction that "a fund of this nature is within its spirit and meaning."

P. 246, [202]. "If however, investment in land is the ulti"mate destination of the money, the bequest will not be pro"tected by the circumstance of provision being made for its sus"pension during an indefinite period; and therefore gift of

"personal estate to be laid out in the purchase of lands has been "repeatedly held to be void, although the trustees were em"powered to invest the money in the funds until an eligible "purchase could be made."

P. 247. "And it is equally clear (whatever doubt may for"merly have been entertained on the point) that a legacy to a "charity, on condition that land be provided from another source "for effecting the testator's object, is void, as by such means, (and this is the test by which the validity of all such gifts is to "be true,) fresh land is put into mortmain."

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P. 252. [211.] "Never indeed was the spirit of any legisla "tive enactment more vigorously and zealously seconded by the judicature than the statute of the 9 Geo. II. This is abun"dantly evident from the general tone of the adjudications; but "the two points in which it is most strikingly displayed are, first, "the holding a gift to charity of the proceeds of the sale of real "estate to be absolutely void, instead of giving to the charity "legatee the option to take it as money, according to the rule "since adopted in the case of a similar gift to an alien; and, secondly, the refusal of equity to marshal assets in favor of a "charity in conformity to its general principle."

"Id. P. 259. [219]. "The necessity of imposing some re"straint on the power of protracting the acquisition of the absolute "interest in, or dominion over property, will be obvious, if we "consider for a moment what would be the state of a community "in which considerable proportion of the land and capital was "locked up. That free and active circulation of property, which "is one of the springs, as well as the consequences of commerce, "would be obstructed; the improvement of land checked; its "acquisition rendered difficult; the capital of the country gradually withdrawn from trade; and the incentives to exertion in "every branch of industry diminished. Indeed, such a state of things would be utterly inconsistent with national prosperity; "and those restrictions which were intended by the donors to "guard the objects of their bounty against the effects of their own improvidence, or originated in more exceptionable motives "would be baneful to all."

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Such are the dispositions of the law of England respecting devises similar to the one in question, and although it has been decided in several cases there, that this statute of Geo. II and the general law of mortmain did not apply to Scotland, Ireland, and

the Colonies, being purely a municipal law (according to decisions cited in 2 Merivales Rep. p. 143, and Redfield on Wills, Part II, p. 790,) nevertheless the Appellants would willingly accept the rule of the English law such as it existed at the time of the cession of Canada to determine the validity of the devise in question.

It is a remarkable fact that the same causes seem to have called for almost identical enactments at the same period in France, England and Canada. The policy and motives of the French Ordinances and the English Statutes are the same, and appear to have originated in a common want to remedy a common evil. And whether you submit this will to the test of the English, of the French or Canadian law, its dispositions are equally inconsistent and violative of the prescriptions of any of

them.

If the same rule prevailed in England, when the change of Sovereignty took place, respecting devises and bequests of this kind, the mere fact of the change of Sovereignty cannot have dispensed with legal provisions which, in the opinion of the legislators of both countries, were essential for the protection of families and the welfare of society.

FIFTH POINT.

Under our system of jurisprudence bequests and devises for charitable uses, even when made within the limits of the freedom of disposal by will, were subject to the controlling power of the Courts who restricted them in favor of relatives.

The removal of incapacities existing under our laws effected by the Statutes of 1801 carefully excepted those which existed respecting corporations and other persons in mortmain, unless these corporations were specially authorized by law to accept of any such devise, as shown by the Statute and the various articles of our Code cited above.

Much stress has been laid on the promulgation of this Statute as introducing an unlimited freedom of disposing by will of every kind of property in favor of whomsoever the testator might select as the object of his liberality. The liberty of disposing by will existed nevertheless before this Statute, so far as the personal estate or moveable property was concerned and one-fifth of the propres. True it is that there was a portion reserved to the family, and a prohibition existed to bequeath the remaining por

tion to bastards, concubines, the attending physician and confessor; but no prohibition existed to give for pious or charitable uses the unreserved portion of the estate.

Within these bounds the testator was as free to dispose as now. It did not however prevent the Courts from interfering with such bequests, and whenever a will was found disposing in an extravagant manner to charitable or public uses of the portion left to the free disposal of the owner, overlooking poor relatives, although they had no legal right to the estate by reason of the will, the Courts invariably interfered in their interest, sometimes cancelling and generally curtailing such dispositions.

17 Guyot, Rep. Vo. Testament, p. 176.

Lorsqu'un testateur a légué tout ou partie de sa succession aux pauvres, c'est une jurisprudence constante d'en donner une "portion considérable aux pauvres parents."

The author cites five arrêts which set aside legacies to hospitals or charitable uses on the sole ground that these legacies were extravagant and unjust to poor relatives, though the testator had full power and authority by law, to exclude the collateral relatives from his succession by will, and he adds:

"On a encore jugé de même par un si grand nombre d'arrêts "qu'on ne peut pas les rapporter tous et récemment pour les "dispositions du Sieur Alliot, Abbé commendataire de Haute"feuille. Dans ces cas la justice répare l'oubli du testateur ou "la faute qu'il a faite de préférer de pauvres étrangers à ceux "de son sang."

Every aspect under which the case of the Appellants could be considered seemed conclusive in their favor. A positive law clear and definite covering without possibility of cavil, the clauses of the will impugned by them; these clauses being the very illustration in fact of the prohibition of this law; the solemn declaration of all the tribunals of the country affirming its exist ence; the absence of any disposition repealing or even implying its repeal; the reiterated sanction of all its dispositions in several articles of our Code; and besides this the character of this legacy made contrary to the fundamental principle of our law of succession, a legacy made directly to a non existing being, through the instrumentality of agents, and a further violation of the law prohibiting devises to Corporations, equally condemned by the laws of Canada and England; resting their case on these irrefutable grounds, the Appellants had reason to expect a favorable decision.

On the 30th March judgment was rendered by Mr. Justice Beaudry dismissing their action.

Three reasons are given by the learned judge in the judgment of record:

1st. That the establishment of a public library and museum is legal and does not require previous Letters Patent authorizing the same.

2nd. That under the will the two trustees were vested with the estate for the purpose mentioned in the will.

3rd. That under the 869 Art. of the Code, the fiduciary legatees can hold and manage the estate so as to carry out the desires of the testator, until a corporation be formed, and that until such time no contestation as to the right of such corporation to receive the legacy can take place.

As to the first ground, it is difficult to understand how it can be an answer or construed as an objection to the action. The Edict does not apply to bequests made for the creation of illegal corporations; but to all bequests made for the purposes of establishing corporations to be sanctioned and approved of by the constituted authorities. No corporation can exist without the authority of law, and this principle is not new; it prevailed in 1743 as well as now. The establishment of a public library and museum was at no time illegal, no more than the foundation of an hospital. If an individual thought proper to establish a library, or if two or more parties thought proper to join in the erection of a library or an hospital, no law ever existed to prevent this laudable object.

The only difference made by chapter 72 of the Consolidated Statutes is that the permission is given by Statute upon the condition of fulfilling certain formalities prescribed by the Statute, the most which could be inferred from the promulgation of the Statute is that the necessity of Letters Patent has been done away with, and that persons can subscribe together and form themselves into an association which shall have the same powers as if created by Letters Patent.

The prohibition of the Art. I of the Edict enacts that no establishment or corporation shall be formed without the express permission of the Crown granted by Letters Patent. The Letters Patent are nothing but the evidence of a permissive authority. Whether this authority be given by Letters Patent or by statute, the rule still subsists that no corporation can be formed without