Imatges de pàgina
PDF
EPUB

Journ. Dom.

Com.

See Post. c. 2.
Exemptions.

hold in mortmain in perpetuity, or otherwise, any lands whatsoever, and of whomsoever the same should be holden and declaring such laws so aliened, or acquired and licensed, not to be subject to any forfeiture by reason of such alienation or acquisition.

:

This act originated in the House of Lords, where it passed with one amendment on the 13th of April, 1696: it was afterwards agreed to on the 25th of April, without any amendment, by the Commons; and Sir Henry Hobart (afterwards Chief Justice of the Common Pleas) the chairman of the committee, returned it to the House of Lords, where it received the royal assent on the 27th of the same April.

All charters of this nature since granted are of valid authority under this statute; which laid at rest all questions of doubt relative to the dispensing power, and to the consequent title of lands purchased under any such licence or charter. If, therefore, any corporation purchase lands without any such provision in their charter of establishment, or without having previously procured such licence from the crown, as the crown may be well advised by the Attorney-General to grant for that special purpose, the right of entry will accrue, and the lands so purchased will become forfeited.

Such charities as, not being incorporated, have not any such licence, are reduced to the necessity of choosing from among themselves trustees, to purchase in their own names, and take the lands in trust for the charity, to hold to such uses, applications, control, and direction, as any general court of the governors duly called shall appoint; for if they were to take the purchase in the name of the institution itself, it not being incorporated, the lands would instantly vest in the crown as a forfeiture in mortmain.

SECT.

SECTION III.

Of Devises of Real Estate for Charity.

Law, 477. 2

7.

No manors, lands, &c.] The first material case that 9 Geo. 2. c. 36. occurred after the making this statute was that of Ash- 2 Burn Eccl. burnham and Bradshaw; and as the chief question in Atk. 36. the cause appeared to be a point of law arising on the Barn. Ca. Cha. construction of a new act of parliament, which had never 1 Vezey, 33. Atty.-Gen. v. come in judgment before, and to be a matter of great Lloyd. importance, the Lord Chancellor thought it fit, in order to the settling the law thereupon, that the opinion of all the judges should be taken.-Robert Bradshaw made his will in 1734, and devised divers lands, and tenements, to trustees, and their heirs, in trust, or for the benefit of certain charitable uses therein-mentioned, amongst several other trusts. The above statute for restraining dispositions in mortmain took place in June, 1736. In July following the testator died, having been insane from the time of passing the act until his decease, and had not a sufficiently lucid interval to make any alteration in his will. The question was, whether such gift or devise, so far as the same related to the charitable uses, was good in law notwithstanding the statute? And all the judges, except Mr. Justice Denton, who was ill and absent, certified that the gift or devise, so far as related to the charitable uses, was good in law, notwithstanding the statute; and thereupon the court established the will, and decreed that the trusts of the charities should be carried into execution, on this reasonable ground, that the will was made and dated before the act, although the testator died after it had taken effect.

[blocks in formation]

1 Vezey, 178.

1 Vezey, 225.

2 Wms. 262.

Atty.-General

v. Andrews, 1748, MSS.

But in the case of Willet v. Sandford, the testator, Windowe, made his will in 1734, devising the bulk of . his estate to trustces, to certain trusts, and particular lands to charitable uses. The act passed in 1786; and in 1744, by a codicil, he added new trustees, and confirmed his will. The devise to the charity was declared void; for the republication of the will by the codicil, after the act, rendered the devise clearly within the

statute.

In Attorney-General v. Andrews, a devise of copy. hold lands not surrendered to the use of a will made before the statute was held good, as not within the last mortmain act, on the principles of the foregoing cases; nor within the statute of frauds; and good also by way of appointment under 43d Eliz. I have been favoured by a friend with this case in manuscript, on which account I insert it at length, in order to preserve the reasoning which it contains; but the facts on which it is grounded cannot, from the distant date of the statute, ever recur, so as to retain a devise of copyhold estate.

William Weston, by will in 1735, devised his freehold and copyhold estates for the benefit of his daughter and the heirs of her body, &c. with remainder over to trustees for charitable uses, viz. for educating and apprenticing poor boys; he then specified his outstanding securities, and directed them to be called in and invested in the purchase of land, and appointed his daughter and others executors. The will was not attested. The daughter died first, and afterwards the testator died, without having made any surrender to the use of his will. An information was filed against his heirs-at-law and executors for a performance of the will, in relation to the harity; and though the will was proved in the spiritual rt, it was proved also in this court, the probate below eing material (as was admitted by the relators' coun

sel)

sel) because it did not operate as a will. The principal questions in this case were,

1. Whether the want of attestation and surrender were sufficient to hinder the copyhold lands from passing by this will to the charity. For as to the freehold lands (it was admitted by the relators' counsel) the will was void for want of attestations; it having been determined, that where freehold lands are devised to charities, the will must be executed as the statu e of frauds and perjuries requires.

2. What passed by the bequest of the monies at interest, whether such as the testator had at the time of the will only, or whether it takes in what he had at his death,

3. Whether the bequest of the personal estate to the charity was good in law, it being after a gift to the daughter for life, and then to the heirs of her body, and the heirs of their bodies boru, or to be born, jointly for their lives; and then, for want of such heirs, it is given over.

It was argued by Sir D. Ryder, (Attorney-General) Mr. Brown, and others, for the relators,-1. That attestation is not necessary in the case of copyholds; for before the statute of Henry VIII. of wills, they might be devised by parole; and though by that act they must now be devised by writing, yet the 29 Car. II. c. 3. (which makes attestation necessary) does not extend to copyholds (which pass by the custom), but to such lands only as pass purely by the will. Before this act all wills were good as to freeholds, if in writing, though not attested; and so it is now in relation to copyholds. It 2 P. W. 258. is there said, that if a will of copyhold is attested by one or two witnesses only, it is sufficient. Now, if three witnesses are not necessary, neither is one necessary : and, accordingly, in Page and Tuffnell, April 7, 1740, it was determined by Lord Chancellor Hardwicke, that a devise

H 3

261.

a devise of a copyhold estate by the cestuy que trust Barnardist. 12. was good, though the will was unattested. And his lordship now said, that in that case he did determine so, though before, a contrary opinion had been given in this

court.

2. The want of a surrender does not make a will void in the case of charities. It operates as an appointment within the statute of Eliz. And in many cases the court will supply the want of a surrender, as in Cook v. Forrester, 35. Araham. [And generally in the case of charities there is no necessity of the surrender of a copyhold.]

3. As to the extent of the bequest, this is not to be confined to the time of making the will, but it has relation to the death of the testator. All the monies at interest are given generally; and afterwards, when he particularizes the securities, he introduces it, by saying, that "the trustees may know how his estate now stands;" which word (now) is omitted in the bequest: this shews he 'meant to give all the money he should have at his death. Besides, the money itself is here given; and, therefore, though the securities may have been altered, yet the money remains, and will pass. And Mr. AttorneyGeneral cited Peirse v. Stablin, where one bequeathed 5000l. stock generaliy, and purchased it afterwards, and it was held that it passed.

4. By the devise to the daughter, she takes for life only, and not intail; and the heirs of her body take as pur chasers, words of limitation being added to them. The words" issue of the body" have been taken by way of limitation. And though here it is said, "for want of such heirs," the meaning hereof is, that if the daughter has no such heirs as are here described living at her death, the lands shall go over.

Such construction must be put on the whole devise a☛ to make it operate, if possible. Besides, it is material

that

« AnteriorContinua »