ful trusts remaining subject to such trusts, and the part apportioned to the superstitious trusts being applied to lawful charitable trusts for the benefit of Roman Catholics; and the trusts may be ascertained from usage (i). This section does not, of course, apply where the fund is wholly given to superstitious uses (j). titled on Persons enfailure of superstitious gift. Where a bequest for superstitious purposes fails, it falls into residue (k), or, if it is a gift of personalty, goes to the next of kin (1), or, if of realty, to the heir-at-law (m). A limitation over in the event of a gift being void as contrary to Limitation public policy or superstitious is good (n). (i) Sect. 5, post. (See Re Blundell's Trusts, 30 Beav. 360. (k) Heath v. Chapman, 2 Dr. 417; Re Blundell's Trusts, 30 Beav. 360. (1) West v. Shuttleworth, 2 My. & K. 684. (m) Croft v. Evetts, Moo. 784. With regard to land given to superstitious uses, it will be remembered that the statute 23 Hen. VIII. c. 10, ante, p. 18, which made superstitious uses void, did not give the lands affected by them to the king; and that the statute 1 Edw. VI. c. 14, ante, p. 18, although it gave the land affected by the superstitious use to the king, extended only to superstitious uses then existing. See per Holt, C. J., in Rex v. Portington, 12 Mod. 31. As to forfeitures to the Crown under 1 Edw. VI. c. 14, where the gifts to superstitious uses were made before the passing of that statute, see Waldern v. Ward, 2 Sid. 13, 14, 46; and Att.-Gen. v. Fishmongers' Co., 5 My. & C. 11, 17. A decision contrary to Croft v. Evetts, supra, was come to in Rex v. Portington, 1 Salk. 162, where the Court of Exchequer held that a superstitious devise (not also charitable) though void was not so far void as to result to the heir, and that therefore the king should order it to be applied to a proper use. But when the same matter afterwards came before Lord Holt, 3 Salk. 334, he is reported to have recommended the heir to seek relief "in Parliament," the words he really used having probably been "in equity." Having regard to Croft v. Evetts, supra, the first decision in Rex v. Portington must be considered to be of doubtful authority. (n) De Themmines v. De Bonneval, 5 Russ. 288. See also Sibley v. Perry, 7 Ves. 522; Carter v. Green, 3 K. & J. 591; Warren v. Rudall, 4 ibid. at p. 618, and n. (o) to sect. 4 of the Mortmain and Charit. Uses Act, 1888, post. over on superstitious gift good. CHAPTER III. GIFTS TO CHARITIES. SECTION I. STATUTORY RESTRICTIONS ON GIFTS TO CHARITY. Statutory re- THE assurance of certain kinds of property for charitable purposes assurances for is subject to various legislative restrictions. strictions on charitable purposes. Mortmain Acts and 9 Geo. II. c. 36. Repealed by Charit. Uses Dealt with by Summarised here. Effect of Mortmain and (Mortmain). These restrictions were formerly imposed by (1) the Mortmain Acts, properly so called; (2) the Statute of 9 Geo. II. c. 36, commonly, but inaccurately, called the Statute of Mortmain. Both the Mortmain Acts and 9 Geo. II. c. 36 have been repealed by the Mortmain and Charitable Uses Act, 1888, which re-enacts their provisions in a consolidated form. The provisions of the Mortmain Acts are comprised in Part I., and the provisions of 9 Geo. II. c. 36 in Part II., of the new enactment. The Mortmain and Charitable Uses Act, 1888, forms the subject of Part II. of this Book. In the notes to Part I. of that Act (being sects. 1, 2, and 3), and also in the introduction to the Act, the subject of mortmain is fully dealt with; and in the notes to sects. 4 and 5 will be found the numerous cases which have been decided upon the repealed statute 9 Geo. II. c. 36, all of which are still applicable. The different sections of 9 Geo. II. c. 36 will be found in note (a) to sect. 4 and note (a) to sect. 7 of the new Act. Under these circumstances a short summary of the statutory provisions is all that is required here. The effect of Part I. of the Mortmain and Charitable Uses Act, 1888 (substituted for the old Mortmain Acts), is to forbid the acquisition of land by corporations of any kind (including charitable corporations) except under a licence in mortmain. Exemptions from this prohibition have in many cases been created by special statute, charter, and custom. These exemptions are preserved by sects. 6, 8, and 10 of the new Act. Part II. (9 Geo. II. Property to which it Part II. of the Mortmain and Charitable Uses Act, 1888 (re- Effect of enacting the repealed Act 9 Geo. II. c. 36), forbids the assurance of land (a) (including tenements and hereditaments, corporeal and c. 36). incorporeal, of whatsoever tenure, and any estate and interest in land (b)), and of personal estate to be laid out in the purchase of applies. land for any charitable purpose whatever, unless the requirements of the Act are complied with; and any such assurance which does not satisfy those requirements is void (c). The requirements are as follows:The assurance must take effect in possession for the charitable to be observed use intended immediately from the making of it (d), and must be of land, &c. without any power of revocation, reservation, condition, or pro- purposes. vision for the benefit of the assuror (e). A nominal rent, mines and minerals, and easements may, however, be reserved; so, also, covenants as to the erection and repair of buildings, the formation or repair of streets, drainage, nuisances, &c., and a right of entry for non-payment of rent or breach of covenant, and other similar stipulations may be inserted (ƒ). If the assurance is in good faith, and for full and valuable consideration, the consideration may consist wholly or partly of a rent, rent-charge, or other annual payment (g). The assurance, unless of copyholds or stock in the public funds, must be by deed executed in the presence of at least two witnesses (h). The assurance, unless made in good faith for full and valuable consideration, must be made at least twelve months before the death of the assuror, including the day of making the assurance and of the death (i); or, in the case of stock in the public funds, must be made by transfer at least six months before the death of the assuror, including the days of the transfer and of the death (). Except in the case of stock in the public funds, the assurance must be enrolled in the Central Office of the Supreme Court within six months, unless, in the case of an assurance of land, the charitable uses are declared by a separate instrument, in which case the separate instrument must be so enrolled within six months after the making of the assurance of the land (7). Requirements in assurances to charitable (b) See the definition of land in sect. 10, (g) Ibid. sub-s. (5). post. (h) Ibid. sub-s. (6). (c) Mortmain and Charit. Uses Act, 1888, s. 4, sub-s. (1), post. (d) Ibid. sub-s. (2). (e) Ibid. sub-s. (3). (i) Ibid. sub-s. (7). Gifts by will of property to which Act applies void. Exemptions. The above-mentioned statutory requirements cannot be satisfied by will, and as the word "assurance" in the Act includes a will and codicil (m), the result is that property of the kinds to which the statute applies cannot be given by will to charitable purposes (n). The Act, however, contains exemptions in favour of certain institutions and customs (o). And the numerous exemptions to 9 Geo. II. c. 36, which had been created by various statutes are all preserved (p). SECTION II. GIFTS TO CHARITIES NOT WITHIN THE STATUTORY PROHIBITIONS. Favour shown to charities. Bequests to charity upheld where ordi narily they would fail. Presumption in favour of construction which will make gift effectual. Favour shown to Charities. Gifts for charitable purposes not falling within the statutory prohibitions referred to in the last section, such as gifts of personal property, not being an interest in land and not directed to be laid out in the purchase of land, and gifts of all kinds of property in cases coming within the exemptions there referred to, were always regarded by the Court of Chancery with especial favour. Thus dispositions by will in favour of charity are upheld in many cases in which, if treated according to the ordinary rules, they would fail (g). And where a charitable bequest is capable of two constructions, one of which would make it void, and the other would make it effectual, the latter will be adopted by the Court (r). (m) See sect. 10, post. (n) See particularly noto (a) to sect. 4 (a) Ibid. sects. 6, 7, and 12, post. (1) See Bruce v. Presbytery of Deer, L. Lord Thurlow in White v. White (1 Bro. C. C. 12), in the principles of the civil law as applied to charities, or in the religious notions entertained formerly in this country, I know not; but we all know there was a period when, in this country, a portion of the residue of every man's estate was applied to charity; and the ordinary thought himself obliged so to apply it, upon the ground that there was a general principle of piety in the testator. When the statute (22 & 23 Car. II. c. 10), compelled a distribution, it is not impossible that the same favour should have been extended to charity in the construction of wills, by their own force purporting to authorize such a distribution." (r) Bruce v. Presbytery of Deer, L. R 1 H. L. Sc. 96. General Charitable Intention. charitable in The rule, in pursuance of which gifts for charitable purposes are General supported where otherwise they would fail, is that where the donor tention. has manifested an intention that a particular fund shall be devoted to charity, or, as it is commonly expressed, where he has shown a general charitable intention, that intention will be carried into effect, although he has specified no particular objects to which his bounty is to be directed, or although the particular objects which he has named are impracticable. The mode in which in these cases the charitable intention is carried into effect forms the subject of Chap. V. In accordance with the rule above mentioned, if the purposes Indefinite named by the donor are such as the law holds to be charitable, it gifts. is no objection to their validity that they are expressed in the most vague and indefinite terms. charitable purposes. Thus bequests for charitable purposes generally (s), for charitable General and deserving objects (t), or to be distributed in charity (u), or for general religious (x), or educational (1) purposes, are upheld. So, also, bequests to "the ward of Bread Street" (z), to certain named institutions "or to any other religious institution or purposes "the trusteee might think proper (a), “for such charities and other public purposes as lawfully might be" in a particular parish (6), have been supported. So, also, a charitable gift to a class generally, no special objects Class. being pointed out, is not allowed to fail. Thus, gifts to the poor (c), for poor relations (d), or to the widows and children of seamen (e), or persons belonging to a particular trade (ƒ), are none of them void for uncertainty. (8) Clifford v. Francis, Freem. K.B. 330; Att.-Gen. v. Herrick, Amb. 712; Paice v. Archbishop of Canterbury, 14 Ves. 364. (t) Re Sutton, Stone v. Att.-Gen., 28 Ch. D. 464. But see Harris v. Du Pasquier, 20 W. R. 668, and post, p. 38. (u) Att.-Gen. v. Gleg, 3 Atk. 356; Lewis v. Allenby, L. R. 10 Eq. 668. (x) Powerscourt v. Powerscourt, 1_Mol. 616; Bruce v. Presbytery of Deer, L. R. 1 H. L. Sc. 96; Re Lea, Lea v. Cooke, 34 Ch. D. 528; and ante, p. 10. (y) Re Marmaduke Levitt, 1 Times L. R. 578; and see ante, p. 5. (z) Baylis v. Att.-Gen., 2 Atk. 239. (a) Wilkinson v. Lindgren, L. R. 5 Ch. 570; Copinger v. Crehane, 11 Ir. R. Eq. 429; Pocock v. Att.-Gen., 3 Ch. D. 342. See, also, ante, p. 8. (b) Dolan v. Macdermot, L. R. 3 Ch. 676. See also Cook v. Duckenfield, 2 Atk. 562; Att.-Gen. v. Freeman, Dan. 117. And distinguish Morice v. Bishop of Durham, 10 Ves. 522; and Williams v. Kershaw, 5 Cl. & F. 111, cited post, p. 37. (c) Att.-Gen. v. Matthews, 2 Lev. 167; Att.-Gen. v. Rance, cited Amb. 422; Att.-Gen. v. Wilkinson, 1 Beav. 370; and see ante, p. 2. (d) White v. White, 7 Ves. 423; Att.Gen. v. Price, 17 Ves. 371; and see ante, p. 4. (e) Powell v. Att.-Gen., 3 Mer. 48; Att.-Gen. v. Comber, 2 S. & S. 93; Thompson v. Corby, 27 Beav. 649; and see ante, p. 3. (f) Re White's Trusts, 33 Ch. D. 449; and see ante, p. 3. |