ferred by may be bequeathed to a charity, even though the debt may remain unpaid at the death of the covenantor, and has to be paid out of his real estate, his personalty being insufficient (k); but a covenant to leave money to a charity must be treated as a legacy, and is void in the proportion which the impure bears to the pure personalty (1). A power conferred by Act of Parliament on a charit- Power conable institution to hold land without incurring any of statute on an the penalties of the Statutes of Mortmain, does not hold land does enable it to take land by devise (m), the statutes referred to being not the Act 9 Geo. 2, c. 36, but the older statutes prohibiting corporations from holding land without a licence in mortmain from the Crown (n). If, however, the special Act expressly authorizes the charity to take land by will, it seems necessary to hold that a devise to it would be valid, as otherwise the enactment would have no effect (0). institution to not enable it to take land by devise. sonal estate to rule against Pure personal estate, i. e., personal estate uncon- Gift of pernected with land, may be bequeathed by will for charit- a charity not able purposes, if those purposes do not involve the obnoxious to purchase of land; and such a bequest is not obnoxious perpetuities. to the rule against perpetuities, although the trust may last for an indefinite period. "private for religious edification of Any gift for the promotion of a useful public pur- Gift for pose is charitable, but the purpose must be public; for charity," or if money is given in trust for such benevolent purposes purposes not as the executors shall approve (p), or in "private connected with charity" (q), the law will not recognize such a trust. the public, not So also as regards gifts for the maintenance of reli- recognized. gious services, those services must be such as tend directly or indirectly to the instruction or edification of the public; and a gift to a religious community of The cases of Shadbolt v. Thornton, 17 Sim. 49, and March v. AttorneyGeneral, 2 J. & H. 61, are apparently overruled. (k) Re Robson, 19 Ch. D. 156. (1) Fox v. Lowndes, L. R. 19 Eq. 453. (m) Nethersole v. School for Indigent Blind, L. R. 11 Eq. 1; Chester v. Chester, 12 Eq. 444; Luckcraft v. Pridham, 6 C. D. 205. (n) See 7 Edw. 1, c. 1; 7 & 8 Will. 3, c. 37. (0) Perring v. Trail, L. R. 18 Eq. 88. (p) Morice v. Bishop of Durham, 10 Ves. 532. (4) Ommanney v. Butcher, T. &. R. 260. Trust to repair church, or tomb, when a charitable persons who spend their lives in celibacy for the purpose of sanctifying their souls by prayer and pious contemplation has been held not to be charitable (1). A trust to repair a church or a monument in a or churchyard, church, being an ornament of the building (s), or to repair a parsonage house (t) or a churchyard (u), is a good charitable trust, as being for the benefit of the inhabitants of the place; but a trust to repair a particular tomb in a churchyard is a mere private purpose, and not charitable; and if the trust is to last for an indefinite period, the gift is void as creating a perpetuity (x). object. Gift to a charity to be applied in A gift of money to a charity to be applied in building is prima facie void, as involving the purchase building void, of land for a site (y). unless on land already in mortmain. But there is no objection to a bequest of money for the erection or repair of buildings on land already in mortmain (*), or for the endowment of churches or chapels in existence (a). Where there is land already in mortmain on which the buildings can be erected, it is sometimes difficult to ascertain whether a testator has sufficiently pointed to such land so as to render the gift good. In a case where a legacy was given to build a parsonage-house, and it appeared that there was glebe on which it could be erected, the gift was held good (b). In another case a gift of money to the trustees of a Wesleyan chapel to be applied towards the erection of a new chapel was held valid, there being land duly vested in the trustees at the date of the will on which a new chapel could be built (c); but (r) Cocks v. Manners, L. R. 12 Eq. 574. (8) Hoare v. Osborne, L. R. 1 Eq. 585. (t) Attorney-General v. Bishop of Chester, 1 Bro. C. C. 444. (u) In re Vaughan, 33 C. D. 187. (x) Lloyd v. Lloyd, 2 Sim. N. S. 255; Hoare v. Osborne, L. R. 1 Eq. 585. () Attorney-General r. Hyde, 2 Ambl. 750; Attorney-General v. Nash, 3 B. C. C. 588; Trye v. Corporation of Gloucester, 14 Beav. 173; Pritchard v. Arbouin, 3 Russ. 456; Giblett v. Hobson, 5 Sim. 651; 3 M. & K. 517. (z) Attorney-General v. Davies, 9 Ves. 535; Attorney-General v. Munby, 1 Mer. 327; AttorneyGeneral v. Chester, 1 Bro. C. C. 444; Fisher v. Brierly, 1 De G. F. & J. 643; In re Hawkins, 34 L. J. Ch. 80. (a) Edwards v. Hall, ubi suprà. (b) Sewell v. Crewe Read, L. R. Eq. 60. See also Cresswell v. Cresswell, ib. 6 Eq. 69. (c) Booth v. Carter, L. R. 3 Eq. 757. in a similar case, the contrary was decided by another judge, on the ground that such land was not distinctly pointed out (d). a Gifts to The validity of a gift of money to "establish" charity seems to depend on whether the charity can be charity, when established without the purchase of land. Thus, in valid. Attorney-General v. Williams (e), a gift of personalty to establish a school was held good, because the master might teach in his own house or in the church; and in Hartshorne v. Nicholson (f), a similar bequest was supported on the ground that a school might be established by hiring a room for the purpose. But in the case of Attorney-General v. Hull (g), à similar bequest was held to be void, because, taking the whole of the will together, the Court thought it was clearly the intention of the testator that land should be purchased (h). And in other cases, gifts to establish an hospital (i) or slaughter-houses (k) have been held void. a In order to render a gift invalid under the statute, it is not sufficient that the trustees may consistently with their trust apply the fund in a manner which would be illegal: the question in every case is, whether they must do so (1), for where trustees have discretion to apply the money either in a way which the law allows, or in one which the law disallows, the presumption ought to be that the discretion will be exercised in the former mode (m). a To render void, it is not sufficient that apply it charitable gifts trustees may illegally. if trustees have Thus, if the trustees have an option to lay out the Bequest good, money in land or in investments not savouring of an option to realty, the bequest would be good (n). And in a case lay out in land, where a sum of money was bequeathed to the and jurats of a town to be laid out by them in such (d) In re Watmough's Trusts, L. R. 8 Eq. 272; Re Cox, 7 C. D. 204. (e) 4 B. C. C. 526. (h) See also Dunn v. Bownas, 1 K. & J. 596; Hopkins v. Philips, 7 Jur. N. S. 1274; Tatham v. Drummond, 34 L. J. Ch. 1. () Dunn v. Bownas, 1 K. & J. 596. mayor or other investments. Bequest for building on a site is pro vided, whether valid. manner as they should think proper for the benefit and ornament of the town, the gift was supported although the discretion of the trustees might extend to the application of the fund in violation of the statute (o). And on the same principle a bequest of money to be applied in aid of erecting or endowing a church has been held good (p). A bequest of money to a charitable society for buildcondition that ing almshouses on condition that the society will procure lands for a site, is in effect a bequest for the purchase of land, and therefore void (7); but a bequest of money to be applied in erecting an almshouse provided that some person shall within a limited time give a piece of land as a site is good; and it is not a sufficient objection to a gift to a charity that its tendency is to bring lands into mortmain (). And a bequest for the endowment of a future church, or to build almshouses as soon as land should be given for the purpose, is a valid bequest, and the Court will direct an enquiry whether the fund can be applied for the purpose (s). If it turns out that a site cannot be obtained, the legacy lapses, and will not be applied cy-près (t). Assets not marshalled in favour of a charity. To whom the subject of a If a testator bequeaths a general legacy to a charity without specifying the fund out of which it is to be paid, the Court will not marshal the assets in favour of the legacy, but such proportion of the legacy would fail as the prohibited portion of the testator's property bears to the pure personalty (u). If land is directed to be sold for the benefit of a void charitable charity, and the gift is illegal, the land goes to the heirat-law or the residuary devisee (2). If the bequest be gift goes. of money to be laid out in land, the legacy fails in favour of the next of kin and not of the heir (y). stitutes a If land or impure personalty is given to a person on What cona secret trust for a charity, the gift is void, but in secret trust for order to constitute a secret trust, there must have been a charity. in the lifetime of the testator an express or implied promise or assent on the part of the legatee to carry out the testator's intention (2). doctrine. If a testator shows a general intention in favour of Cy-près charity, but the objects are not specifically defined, or the defined objects fail, the Court will carry out the general intention cy-pres (a). If, however, the testator shows an intention not of general charity, but to give to some particular institution only, and the gift fails because the institution has ceased to exist, the legacy will fall into the residue (b). charitable By a recent Act (c), trustees of charitable funds are Recent Act authorized to invest on real securities, subject to a enabling proviso that where the equity of redemption in the funds to be property comprised in any such security becomes securities. liable to foreclosure, the property is to be sold. invested in real VIII. Conversion. conversion property. Where a testator gives his personal estate or the Rule as to residue of his personal estate in general terms to A. for with regard to life, with remainder over, the trustees are bound to perishable convert into money all such property as is of a perishable or wasting nature, such as leaseholds, long annuities, &c.; the principle being that it is prima facie to be presumed that a testator intends that the same property which is given to the tenant for life shall go to those in remainder, and in order to effect such intention, wasting property must be turned into (y) Cogan v. Stephens, 1 Beav. 482, n. (z) Lomax v. Ripley, 24 L. J. Ch. 254; Wallgrave v. Tebbs, 2 K. & J. 313; Tee v. Ferris, 2 K. & J. 357. See also Moss v. Cooper, 1 J. & H. 352; Jones v. Badley, L. R. 3 Ch. 362. (a) Moggridge v. Thackwell, 7 (b) Clark v. Taylor, 1 Drew. |