entitled to a clear moiety of the residue, which had become lapsed by the decease of D. Evans in the testator's life-time. To which Thomas Batt, the next of kin, also set up his claim.

Although the testator never made any disposition of the lapsed moiety of the residue of his estate in either of his codicils, yet it appeared that he had often declared his intention, in conversation, that Makebam, the plaintiff, should have the whole residue.

The infirmary at Bath claimed that legacy under the statute of Incorporation, 12 Geo. II. enabling it to take lands, &c. in mortmain, not exceeding 1,000l. per annum and by a subsequent statute, 19 Geo. III. reciting that act, and that the building had been completed, and that a great number of poor, who lived at great distance from Bath, and who, froth their indigent circumstances, were incapable of trying or using the waters, had been admitted as patients therein for that purpose, and many of them had been perfectly restored to health, &c.; and stating the income of the hospital in lands not to exceed 240l. per annum towards the 1000l. limited, and about 3201. dividends of stock, exclusive of voluntary contributions; that it was capable of holding 113 patients, but that the income was incapable of supporting so large a number; and that many charitable persons might be inclined to grant lands to the use of the hospital, that were unacquainted with the forms required by the statute of mortmain, whereby their intentions might be frustrated. It was therefore enacted, that all gifts and devises of lands, &c. or of money or stocks to be laid out in lands for said hospital, should be good and valid in law, notwithstanding the statute in mortmain, not exceeding the above limitation of 1000l.These defendants stated by

Hil. 1784.

15 Dec 1792.

their answer, that, the personal estate of the hospital had been increased by pecuniary bequests, but that it had not acquired any greater estate in lands, in consequence of this act.]

The lord-chancellor, by decree, referred it to the master to take account, &c. reserving the consideration of the charity legacies until after the report. The estates were ordered to be sold in the mean time, and a distinct account to be kept of the produce of the real and of the personal estate.

This cause coming on again for further directions, on the master's report, it appeared that the charitable legacies amounted to 12001.; that 10371. great part of the personal estate, had been applied in payment of debts; and that a balance of 950l. remained in the hands of the plaintiff, as surviving executor.

That the real estates produced a very considerable

suni.

The lords commissioners, after investigating all the points of this case, ordered (so far as related to the charities) that the legacy to the Bath infirmary should be paid, as being exempted by the act of 19 Geo. III. from the statute of mortmain; but that they must decide upon the authorities of preceding decisions; that they could not marshal assets for charities; and that, therefore, the amount of the charity legacies belonged to the other claimants.

It appears by this determination, that the charities, except one which was by law exempted from the statute, lost their legacies, although the account of the personal estate was far more than adequate for the payment of them and of the debts, because they were charged upon the residue, which consisted of a mixed property of real and personal estate: it becomes therefore safer for cha

rities,

rities, that their legacies should be given by distinct clauses, and specially charged upon the personal estate; and that if the testator would devote the whole of his residue to charitable uses, he should previously devise all his real, and what personal he possesses that savours of real estate, to other parties; for in cases where there is sufficient net produce of the purely personal estate for the payment of all the debts, charitable and other legacies, the court is not called upon to consider any question as to marshalling assets-nor does it declare a charity legacy to be void, which is charged upon a residuary estate, consisting of personal property only, although it may be insufficient for the payment of them, besides the debts; for in that case the charitable legacies, like all others, will be ordered to abate, in proportion to their amount, there being now no preference allowed to either. The following case, in some respects, exemplifies what has been advanced :

John Redman, by his will, dated 25th July, 1797, bequeathed as follows: "Having provided handsomely for my daughter on her marriage, I hereby bequeath to her children, born or to be born of my daughter Mary Smith (Redman), the wife of Craven Ord, Esq. (the eldest excepted, whose father will provide for him) the sum of 20001. to each of them at the age of 21, for which purpose I bequeath all my valuable estates at Greenstead and Ongar-the rents to be applied towards their education. And if the estates when sold is not sufficient to fetch that sum, thn the difference to be made up out of the personal estate." He then bequeathed divers pecuniary legacies, among which were several to charitable institutions, and the remainder of his property, be it more or less, to the benefit of the London hospital.

The testator died in July, 1798, and in Michaelmas

1805.

Ord. v. Patley.

MSS.

term following a bill was filed in behalf of the five children of Mrs. Ord, then all minors, against the executors and Mrs. Ord, for an account of the personal estate, and to restrain them from paying the legacies, which were of considerable amount, until it should be ascertained what children of Mrs. Ord would be entitled to 20001. each, and how much thereof ought to be paid out of the personal estate.

The decree established all the trusts and legacies of the will, except one of 51. to be paid out of the Greensteadhall estate, to repair the alms-houses of Captain Cook, which was declared to be void by the statute, with the usual reference of inquiry.

of

Mrs. Ord was soon after delivered of another child, and she died in March, 1804, leaving six children (besides the eldest) entitled to the 20001. each. The personal estate consisted of stock in several of the funds to a very large amount; and, with accumulations of interest, much more than sufficient for the payment of all the legacies, besides estimating the real estate at a very fair value, which afforded ample security for payment such parts of the six legacies of 20001. each, as could be in any wise probable to fall upon the personal estate, in case of any insufficiency of the produce on sale of the real estate. The legatees joined in an application for payment of one moiety of their legacies. The court finally ordered, upon the confirmation of the master's report, that one-third of the legacies should be paid.

This case differs from the foregoing in the caution above suggested relative to charity legacies; these were all separately given, and not charged upon the residue: the real estate had first been otherwise disposed of, and the residue was given to one of the charities. The disposition of the real estate, in sums of 20001. among six

children,

children, with the charge of any insufficiency upon the personal estate, did not require the court to marshal any part of the testator's assets for the charities; but only a due caution in restraining the payments to them, until the proper period for the sale of the real estate; lest the personal fund should be untimely exhausted, and the charities be served before the testator's children.

SECTION XII.

Of Inrollment.

Unless such gifts, &c.] The whole tenor of this statute applies to gifts to, and not to purchases made by, charitable institutions; and as it limits such gifts of lands to be effectuated by deed, indented at least twelve calendar months previous to the decease of the donor, and inrolled within six calendar months after its execution, it of consequence makes void all devises of land by last will to such purposes; and it directs all gifts of stocks in the public funds, to be laid out in the purchase of lands, shall be transfered six calendar months previous to the donor's death, &e. It does not therefore restrain either the conveyance of lands to a charity, in the first instance; or to future trustees for the same uses, when once vested. Such trustees, although they may be grantors for the purposes of such subsequent conveyances, are not donors; and are only requested to join in such acts, in order to prevent the lands descending to the heirsat-law of the last survivor, which in all such cases is attended with expense and difficulty. The words of the statute,

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