But that point was not finally determined in the case, and, upon the fairest construction of the statute, does not appear to be the meaning of the clause. The statute was only to operate upon gifts after 24th June, 1736, and all gifts previous to that time have been held good. The clause as to the number of advowsons is restrictive of the exception of colleges, as being able to hold advowsons; it cannot therefore be held to be a prohibition of colleges having more advowsons than amount, in number, to a moiety of their fellows, but only to restrain their taking more by future gifts. If other had meant more, colleges having already more advowsons than the moiety of their fellows, must have lost so many of their advowsons as exceeded that number, which certainly was not the case. The statute therefore did not mean to diversify their right to hold advowsons obtained by any former act, or which they possessed at the time. This will, being made before the statute, is not affected by it. In this case it is purely by accident that the event has happened after the statute, by the increased rents of the property; but the case must be the same as if it had been a gross sum given previous to the statute, to be laid out in advowsons. Suppose it had been so, and the money had not been laid out, from proper purchases not offering, the money might be laid out notwithstanding the statute. The disposition might still have been legally made of the money: money to be laid out, in this court is considered as done; as in the case of money to be laid out in land, it is considered as land. The college, however, thinking themselves restrained from purchasing more advowsons, had laid out the money in the increase of livings already purchased, as being a purpose the most analogous possible to that 1 Vezey, 534. which the testator intended; and by adding to the value of the headship. Attorney v. Wborwood was cited at a subsequent hearing, as deciding, that where the regulations imposed were inconsistent with the rules of the charity, it would be a resulting trust for the heir-at-law. On the other hand it was contended, that whatever was not given to the charity went to the residuary legatee, there being an express intention in the testator to dispose of every thing and cited 8 Mod. 222, and MSS. case, Goodright and Opie. Lord Thurlow, chancellor, said, the point in question was with respect to the charity itself. The court had had a plan laid before it: supposing the whole object of the charity to fail, and yet that the estate is by the will appropriated to charitable uses, still the will is a clear exclusion of the heir-at-law. It is under this idea, that many charities have been disposed of under the privy seal. Is then the heir disinherited?-He is to claim a trust not resulting from the will, but from the act of the legislature. If there be any case where the heir-at-law is disinherited, it must be that where the devise was good at first. In the first decree, the devise was held up till the license to hold in mortmain should be obtained. So it was held by Lord Camden, in the Downing college case, which license had not then been obtained. Considering the words of the last clause of the act, it is difficult to make it out that there is such a limitation as is contended for; but it has been so constantly understood the other way, that I do not think myself warranted to hold a different opinion. I do not see why some arrangement should not be made, by way of exchange of advowsons; but it is not necessary to declare that now. If that should should fail, the question between the general trustees and the heir-at-law will then arise. I confess it will be difficult to obtain it for the heir-at-law, and perhaps as difficult for the general trustees. If all those should fail, it may be a question, whether it is become fiscal, or will go to the heir-at-law as resulting to the founder. CHAP. CHAP. IV. OF SCOTLAND. 9 Geo. 2. c.36. sect. 6. Scotland, &c. exempted. 1754. Provost of Edin- 1 Bro. Cha. Rep. 271. Nothing shall extend, &c. to Scotland.] The last section of the act exempts all estate real or personal in Scot land, from the restraints already imposed on those in England. The court of Chancery of England has no juris diction to enable it to give any directions for the distribution of a legacy of stock bequeathed for the maintenance of poor labourers in Edinburgh, which belongs to the courts of Scotland; and therefore, in such a case, the stock was ordered to be transferred to such persons as the parties should appoint, to be applied to the uses of the will. There is a case already cited in page 155, where an estate in Ireland was devised to charitable uses in Ireland. I have met with none, where estates either in Scotland or Ireland were devised to charities in England; though it is presumed, if the charities were incorporated, and so become capable of taking, such a devise would not be void by the former clauses of this act. Upon the same principles, a devise of lands, or of a rent charge on lands in the West Indies, to a charity in England, is good. Instances of the latter have occurred, and the executors or heirs-at-law never thought of contesting the devise against the charity. OF MORTMAIN AND CHARITABLE USES. PART III. OF SEVERAL INCIDENTS TO COLLEGES AND CHARITABLE INSTITUTIONS. CHAP. I. OF VISITATION. THERE is no constitution established in society, without a power being vested somewhere, either declared or implied, for redressing its grievances or abuses: in nations this power generally belongs to the party invested either with the legislative or the executive branch of government in inferior communities, it often depends on the will of their founders, not repugnant to the laws of the land; or when this is not declared, the right devolves upon the executive power. There are two sorts of corporations: 1. Those that are for the public government; and, 2. Those that are for private charities: the first of these are governed by the common |