SECTION VIII. Of Devises or Bequests for Erecting and Building. Building. Gastrily Baker, 1747, cited in 2 Vez. 185. Erecting and building are often joined, though the Erecting and former expression is used in a legal sense more as synoni mous with creating or founding; as where a testator gave all the rest and residue of his estate of what "nature soever to trustees, in order to and towards erect"ing a school for the education of poor boys, in such place, and in such a manner as the trustees should "direct and appoint." It was insisted that this was a lapsed legacy by the mortmain act; and that erecting a schoo Imust mean buying and building. But Lord-chancellor Hardwicke said, that erecting included the founding, and consequently the maintenance of the master; which was a different thing from the mere school-place itself; but the end might be obtained by hiring a house, and that for ever; and directed accordingly. And a similar determination, grounded on the same 2 Vez. 182. Vaughan and principles, was afterwards made in 1751; where Allen, Farrer. the testator, had devised the residue of his real and personal estate in remainder to trustees, to erect in or near York an bospital for the support and maintenance of as many poor old men as the surplus of his estate and effects would admit of, and to put in as many as they should think proper in their discretion: and Lord-chancellor Hardwicke said, The remainder over of the real to the charity is void; which is given up; and, consequently, whenever the death of the devisee for life, without children living at the time of her death, happens, the reversion in fee will take place in the plaintiff; (beir-at-law and next-of-kin.) But as to the residue of the personal, I am of opinion, the charity must be supported; and that it is not contrary to the true intent, meaning, and construction of 9 Geo. II. : : As to the point of the mortgage; if that objection was to hold, it would be very fatal. Atty.-Gen. v. Meyricke, is very different there was a specific legacy of the whole personal estate, not given by way of residue; and the mortgage particularly by name, which the trustees particularly claimed; and it seems (for I do not enter into the point now) agreeable to that case of papists, who are not capable of taking a mortgage. Here is no part of the personal estate given specifically; nothing but the residue, which will remain after payment of the debts, funeral expences, and legacies; which may exhaust the whole of these mortgages, supposing any such; which does not appear: so that it cannot now be said, that there will be one shilling of the money arising on the mortgage applicable to this charity; residue implying nothing specific, only the balance of an account after debts, &c. which is not yet known until administered by the executors, in whom the whole residue vests: or the executors may turn the mortgage into money, and the trustees can pray nothing against them. but the balance of an account. The other way of construing this residue would be much too large, and make these bequests so uncertain, that the act of parliament might be as well made, that no personal estate shall be given. The question then comes on the construction of the be quest in general; to which it is objected for the plaintiff, that this residue is given in fact to be applied in pur chase of land, or part of it at least, contrary to the statute; that the court would not have made another construction before the statute, and consequently ought not not now: but I am of opinion, this was not then, nor is now, a necessary construction. As to the construction of this clause, it comes very near to the case of a school: for a school imports there should be some place in which the children shall be taught; for it cannot mean it should be sub dio So does an hospital import some place in which these people, should be entertained. There is no direction in this will, that any part of this money should be laid out in building an hospital; for erect as well imports foundation as building and therefore it was so construed in the case of the school; and so is erigimus construed in charters of the crown, and private foundations. It is said, if this case had come before the court before the making this statute, the court would have directed part to be laid out in land and building on it, and part in land' for endowment and maintenance thereof; perhaps it would be so; it is therefore inferred, the court cannot make a different construction, to evade the statute: and for that a case was cited (Mogg v. Hodges), where the court was not warranted to make an alteration in marshalling assets to evade this statute. The court cannot lay down a different rule of law or equity in respect of the rights of the parties, to take a case out of the provision of this statute; but that is a very different thing from the manner of executing a charity. The carrying the directions of a will for performance of a charity into execution is different from the other. Now before this statute, it would have been in the pleasure of the court to have directed this money to be laid out in land or personal securities, the funds; and the court did then frequently direct to lay out money, given to a perpetual charity, in the funds, and not in Jands, where the will did not direct to be laid out in land; as this does not. Sir J. Jekyl has done it; for he took it to be in the discretion of the court: and the court has done it since in the case of money given or collected in a person's life to a charity; which there is no restraint in this statute from laying out in land: notwithstanding that the court sees this goes so near to the mischief intended to be remedied by the statute, that the court will not direct it to be laid out in land, but in the funds; and I believe on that ground, though by this statute it was lawful to do it, yet as it was contrary to the tenor of it, I varied a direction given by Sir Wm. Fortescue, late master of the rolls. As therefore this will has not given direction for laying out this in land, before the statute it would be in the power of the court to direct it either way, and since the statute to direct it one way, the funds, the court ought to do so; for there is nothing in this statute prohibiting the giving personal estate to charity, provided it is not to be laid out in land; and the words of the statute are implied to improvident alienations to disherison of heirs. If a large personal estate is left to trustees for a charitable use, which they direct, and there is no occasion to come to a court of equity for direction, there is nothing in this statute restraining the trustees from laying out that in land; because by the express proviso, all purchases to take effect in possession are good, notwithstanding this act of parliament; which is a matter may perhaps want a remedy. If indeed these trustees were to come to this court for an establishment, the court would never direct it to be so laid out in land; but there is nothing illegal disabling the trustees from privately doing it, because the statute makes good all purchases, &c. (to take effect im mediately in possession.) But it is said two purposes are to be answered; one, the erecting, the other, the maintenance of the persons; and that supposing the court should take it in the lati tude tude it now does, as to the endowment and provision for the poor, poor, that that may be answered by putting it out in the funds; yet the hospital cannot be without a building; that land should be bought for it; and the plaintiff ought to have the benefit of so much as the master should think the value. I wish I could come at that, for this plaintiff; who is as much, or more perhaps, an object of charity, than any of these people, who may come into this hospital. It is unfortunate; but yet the court must go according to such rules as will hold in other cases. Suppose this happened before the statute, would it have been of necessity any part of this money should be laid out in land to build an hospital? If the trustees had come before the court and laid a scheme, that a certain person would give a piece of ground to build this upon, it might be done; the court would have accepted it; or if they had said, there were in York several charitable foundations belonging to the city, and they would let them build thereon for this hospital; the court would undoubtedly have accepted it. Nay, they might have said, they would take a house in York for that purpose: there is nothing in this statute restraining the giving money to build. It is lawful, notwithstanding, to give money to build a church. Suppose the universities had stood under the same disability as is laid on other charities; money might notwithstanding be given to erect a chapel or hall, or add a building to a college. That is to be executed at once; it locks up no more land; one may give money to add to the buildings of any hospital in London. 1 ་་ Nothing therefore in this statute restrains the testator from doing what he has done with his personal estate: it is a mere surplus of personal estate given to (what the court construed) founding an ospital; in the foundation of |