10 Vez. jun. 41. Finch v. Squire. 1804.

A bequest of residue, secured upon poor-rates and county rates, in remainder over to the treasurers for the society for promoting christian knowledge. The question was, whether this savoured of the realty so as to be with. in the statute; and it was contended, that the rates as Rates, Tolls, &c. received become security for the sums advanced as a personal pledge, and not to be considered a security upon land. According to the nature of the rates the assessments are made on visible property. The duty does not issue out of land, though the amount is ascertained with reference to the property real and personal: it is not like rent, merely because the remedy is the same.

On the other side it was urged, that this is not personal security by any one, but is merely a mortgage of the rates. No person would be liable upon the security; the only resort is to the rates themselves, They are levied under 43 Eliz. c. 2. upon all lands, &c. If there is real property, the circumstance that they are to come out of personal also is not sufficient, as in Knap v. Williams, no land was there resorted to. The mortgage did not include the toll-houses, and this is in nature of a rent issuing out of land. The remedy is by distress, the mode of recovering all rent charges. It cannot be said the poor rates do not affect land, the course is to value the land, and the party is rated upon that, and not upon personal ability.

The master of the rolls said, there is no solid distinction between money borrowed upon such a security as this, and money borrowed upon turnpike tolls. It is difficult to shew that a charity, by taking money borrowed upon the latter security, takes any interest in land. Those tolls are duties imposed by parliament upon passengers, in respect of their passing along the road. The right to collect those tolls gives no direct interest in the land itself, though an interest in duties arising in consequence

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of a passage along or through the land. are made payable by those who are occupiers of lands, &c. If a man is not an occupier of lands he pays nothing, unless he has other property; but if he has only land, he pays in respect of that. A very nice distinction was taken by the plaintiffs, that the public make him contribute as having the land, not on account of the use of the land. That distinction is not very perceptible. In the one case the public call for the duty on account of the passage along the land, that it may be laid out for the purpose of public advantage, the repair of roads, and facilitating communication; in the other case, they actually burden the lands by burthening the occupier with the duty, for other public purposes of convenience and advantage. It is true they are not raised out of the land only: but by far the greatest part is raised out of the land; for the land pays so much rent, in consequence of the occupier being liable to the poor-rates, otherwise the landlord would have more rent; so all that is paid in respect of the land is got from the land, as much as renț arises out of the land itself. It is more properly to be said to arise out of the land, because it is in respect of the occupation, than the tolls for the mere privilege of passing. As to that part of the poor-rates that is raised out of the personal property, it cannot be distinguished, the security cannot be divided and apportioned; they are so blended that it is impossible to distinguish them. If the consequence of their holding this security would be that something real would go to the charity, it must fail together; that is the necessary consequence; for it must be the security as it stands: that is, such a security as charges the poor-rates in the mode and manner in which they are collected. Therefore these securities cannot pass to the charity.

or through the land. The poor-rates

In like manner the tolls collected at any bridge, or market,

4 Vez. jun. 430.

1798.

Knapp v. Williams.

market, or through any town, are generally secured by contract or mortgage by the trustees; and also shares of any canal which are declared by the statute establishing the canal to be personal estate, and New River shares, which are real estate, are all within the act of mort

mortmain, and are not therefore to be bequeathed to 2 Dickens, 545. charitable uses; for like rents of premises they are issuing out of the realty. It may be further considered, that securities on turnpike-tolls, not including the toll-houses and gates, are within the prohibition of this statute; because the mortgagee would have a right to come into court for an account, and for a receiver to be appointed. He would have a right, by the aid of this court, to have the tolls specifically applied to this mortgage. Consider what the point of law is from the nature of the interest. It is not at all within the mischief, but the consequences would open a much larger field for charitable donations. From the nature of the interest created by the act, these tolls granted in perpetuity are certainly a hereditament; it is in its nature an interest affecting land. He might bring an assize of these tolls.

Vez. jun.542,

551.

man, 1799.

There is another species of toll which gives no right at all in the land. That is toll through.

A bequest of residuary estate, which consisted of mortHowse v. Chap-gages, turnpike-bonds, and other personal estate, was bequeathed for the improvement of a town, and was held to be void as a charitable bequest, and within the case of Attorney v.Vinchilsea; with regard to the mortgages and turnpike-bonds, which did not pass thereby, but being undisposed of by the will, belonged to the next of kin; and a distinction was directed as to what particulars of the personal estate, specifically bequeathed for this purpose, were given, and passed by the bequest from such as did not pass thereby, and to be paid to the town-clerk accordingly.

SECTION

SECTION VI.

Of Personal Estate to be invested in Lands, &c.

Nor any Money, Goods, Chattels, Stocks in the Public Funds, or any other Personal Estate, to be laid out in Lands, &c.] The principal part of this restriction applies to the bequest of stock in the public funds, to be invested in the purchase of lands, or any other thing savouring of real estate for a charity. This was expressly meant to reach a case where a gift for a charity was intended; but an appropriate purchase of land had not then offered, or perhaps been fully completed. Such gifts must be bestowed, and irrevocably transferred in the donor's lifetime, at least six months previous to his death, and be made to take effect in possession for the use intended, immediately upon the transfer-otherwise they are void, and may be recovered by the next of kin.

But although these are prohibited by the statute to be laid out, or disposed of in the purchase of lands, &c. for charitable uses; yet money, stock, plate, pictures*, &c. 2 Burn. EccL given generally is not forbidden: so also the residue of a personal estate hath been decreed not to be within the

act;

478.

1767.

* General Guise bequeathed his pictures, &c. to Christ-church College, directing that they should not be sold, being a good collection. In his Christ-Church College v. Barlife time he parted with some of them, and he acquired above an hundred row. more. Decreed that they all passed.-See All Souls v.Cadrington; 1 Wil- Amb. 641. liams, 597; and Gayer v. Gayer.

The late Sir Robert Rich, Bart. bequeathed by will several views of his seat at Waverley Abbey to the City of London Lying-in Hospital, whereof he was president.-Held to be a good legacy, pictures being personal

estate.

act; and if money be given to be laid out in "lands or otherwise" to a charitable use, it has been determined, that such devise is good, by reason of the words, or otherwise; as in the case of Soresby and Hollins, August 6, 1740; which being a decision upon the express merits of the late act, I shall beg leave to insert it at length, especially as it contains Lord Chancellor Hardwicke's exposition of the statute, in the making of which he seems to have been concerned.

John Naylor, in 1738, made his will in these words: "I will and desire that my executors within twelve "months after my deccase, do settle and secure by pur"chase of lands of inheritance, or otherwise as they shall "be advised, out of my personal estate, one annuity, or yearly payment of 50l. to be paid yearly, and distri"buted for ever by my executors, their heirs and assigns; 66 among the poor and indigent people of Leeke, in Co. "Stafford, in such manner as they shall think fit.-And

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my will also is, that my executors do settle and secure "one other annuity of 51. to be paid yearly to the "vicar of Leeke for the time being, for ever, for preach"ing an annual sermon on every 12th day of October." And the testator devised the residue of his personal estate, to be equally divided between his sisters, Mrs. Soresby, and Mrs. Hollins.

Lord Chancellor Hardwicke said, the only question in this case is, whether the devise of the two annuities of 50l. and 51. to charitable uses is void by the late statute of mortmain?

It is insisted upon by the plaintiffs, the residuary legatees, that it is void; because the direction of the devise is, to settle and secure the annuity by a trust of lands of inheritance: and though the words, or otherwise, are added, they will not vary the case; for Mr. Naylor's intention was, to give the annuity out of lands

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