Imatges de pàgina

tees of the Catholic school, in Wigan, in the county of Lancaster, which sum he charged upon his personal estate, and ordered that it should be paid out of the same, and applied for the use of and towards carrying on the good designs of the said school. And he also gave to his executors the further sum of 2001. upon like trusts, for the benefit of the Catholic school in Liverpool; and the testator, after giving several other pecuniary legacies, bequeathed the residue of his personal estate to the plaintiff. The testator died on the 6th May, 1823, the executors proved the will, and a bill was filed on behalf of the plaintiff, an infant, for the administration of the testator's personal estate; the cause was heard before the Master of the Rolls, and the usual decree made for taking an account of the testator's personal estate. The legacies of 3001. and 2001. were by an order on further directions, dated 1st June, 1830, and by another order in 1833, directed to be carried over to the accounts of the Wigan and Liverpool Catholic schools respectively, but not to be paid without notice to the executors. The trustees of the Wigan school presented a petition, praying for payment of the legacy of 3001., which petition was heard before the Vice-Chancellor, on the 1st August, 1833, when his Honour declined making any order, being of opinion that the legacy was not within the 2nd & 3rd Will. IV. c. 115; inasmuch as the third section of that act provides, that nothing contained in it shall affect any suit actually pending, or any property then in litigation, discussion or dispute in any court of law or equity. A petition of re-hearing having been presented to the Lord Chancellor by the plaintiff, praying that the orders directing the legacies to be carried over to the accounts of the respective Catholic schools, might be reversed; that the legacies might be declared void, and that the sums carried over might be declared to be part of the testator's residuary personal estate; Lord Chancellor Brougham was of opinion, that the act of the 2nd & 3rd Will. IV. c. 115, was retrospective; and that, as the trustees of the school were not litigant parties in the suit, which was a mere suit for the administration of the testator's

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estate, the case did not fall within the exception in the third section of that act. The petition was accordingly dismissed, and the trustees of the Catholic schools were declared to be respectively entitled to the legacies of 3001. and 2001.(g).

In another case, the testatrix, after giving several legacies, some of which were for charitable purposes, as to the rest and residue of her estate and effects, gave the same to Sir John Lawson, and S. Scroope, and she appointed three other persons her executors. There was then a paper entitled, “ Omitted in my will, chapels and priests—to the chapel of St. George's in the fields, London Road, 101.” Similar legacies were given to three other chapels named, and after other small legacies, came this note" Whatever I have left to priests and chapels, it is my wish and desire the sums may be paid as soon as possible, that I may have the benefit of their prayers and masses.” There was a letter signed by the testatrix, and addressed to Sir John Lawson, and S. Scroope, Esq., which had been proved as testamentary, as follows: “ Gentlemen, I have herewith sent a duplicate of my will, whereby you will perceive that I have taken the liberty of bequeathing the residue of my property to you, in confidence that you will appropriate the same in the manner most consonant to my wishes, which are as follows-namely, that the sum of 101. each be given to the ministers of the Roman Catholic chapels at Greenwich, St. George's in the Fields, Sutton Street Soho Square, and York, for the benefit of their prayers for the repose of my soul, and that of my deceased husband George Townsend ; and that the remain

(9) Bradshaw v. Tasker, 2 Mylne the costs of the plaintiff and defen& Keen, 221.

dant, of the application and conseOn the petition of the treasurer quent thereon, as between solicitor and of the trustees of the Catholic and client, and the amount of such school in Liverpool, it was ordered, costs to be paid by the testator's that the sum standing to their ac- executors out of the money in their count should be paid to the trea- hands, part of the testator's personal surer, or to the other petitioners as estate.”Bradshaw v. Tasker, 29 trustees of the said Catholic school July, 1834. Reg. Lib. (A), 1833, in Liverpool, or some of them; and fol. 1190. it was referred to the master to tax

der be appropriated by you in such way as you may judge best calculated to promote the knowledge of the Catholic Christian religion among the poor and ignorant inhabitants of Swaledale and Wensleydale, in the county of York.”

On a bill filed by the next of kin of the testatrix, who claimed the benefit of those legacies which could not be carried into effect by reason of their being given to superstitious uses, it was contended, that there was no charitable purpose expressed by the testatrix; the praying for her soul and the soul of her husband, being purely a superstitious object, as well as the direction to apply the residue of her property to propagate the Roman Catholic religion among the poor and ignorant inhabitants of certain districts; and that the act 2 & 3 Will. IV. c. 115, did not render legal donations for the purpose of propagating the Roman Catholic religion among any portion of his majesty's subjects; which was, in effect, the same thing as converting them to a religion contrary to that established by the law. The residue of the testatrix's property, therefore, being personal, and having been given, not to a charitable, but to a superstitious purpose, the plaintiffs as next of kin were entitled to it.

Sir C. Pepys, M. R., decided, that the gift of the residue of the personal estate not consisting of interests in land, for the purpose of promoting the Catholic Christian religion, was valid within the 2nd & 3rd Will. IV. c. 115, because that act had been held to be retrospective by Lord Brougham (h), and because the property in this case could not be said to have been in dispute at the time of passing that act in 1832, within the third section of the act, inasmuch as the letter which raised the question was not proved until 1834; and because the terms of the bequest were substantially the same as those in Bradshaw v. Tasker, and Roman Catholics now came within the same principle as that settled as to Protestant Dissenters, with respect to their schools and places of worship (i). (h) Ante, p. 113.

v. Hickman, 2 Eq. Cas. Abr. 193, ) See Attorney General v. Pear- pl. 14; Waller v. Child, Ambl. 524, SOR, 3 Mer. 409; Attorney General ante, pp. 104, 105.

His Honour was of opinion, that the bequests to priests and chapels, were not intended for the benefit of the priests personally, nor for the support of the chapels generally, but for the purpose of obtaining prayers and masses for the soul of the testatrix; and held, that the same were void, on the ground of the general illegality of their objects, and not because they came in terms within the statute 1 Edward VI. c. 14. The court also decided, as no charitable purpose was expressed in the will as to these legacies, that the duty of directing the application of them did not devolve upon

the crown, but that the next of kin of the testatrix were entitled to stand in the places of the chapels and priests, as to the legacies given to them (k).

In concluding the subject of superstitious uses it may be remarked, that a grant of an annuity fraudulently obtained by a dissenting minister, having a spiritual ascendancy over a woman who was in a state of religious delusion, was set aside upon principles of public policy (l); and upon the same ground, a settlement made by a widow upon a clergyman and his family, was set aside, because it had been obtained by undue influence and abused confidence (m).

(k) West v. Shuttleworth, Rolls, quest, so as to exclude the legatee 16 April, 1835, MS. Reg. lib. (B), from taking lapsed legacies. Attor1834, 575, 577.

ney General v. Johnstone, Ambl. 577; The general rule is that a residuary Davers v. Dewes, 3 P. Wms., 42; bequest of personalty includes every Ommanney v. Butcher, 1 Turn. & thing falling in, either on account Russ. 260, 2 Rop. on Leg. 582—590, of the legacy being void, or lapsing 3rd ed. by the death of the legatee in the (1) Norton v. Relly, 2 Eden, 286; testator's lifetime ; Durour v. Mot- S. C. 1 Coll. Jur. 458. teux, 1 Ves. sen. 322; Kennell v. (m) Huguenin v. Baseley, 14 Ves. Abbott, 4 Ves. 803; Cambridge v. 273. By the civil law, which enRous, 8 Ves. 14–25; Bland v. tirely prohibits donations inter vivos Lamb, 5 Madd. 412; S. C. 2 Jac. from persons standing in certain re& Walk. 399. If the will shows lations, on the ground of the influthat the testator intended to give ence which they must necessarily only what he had at the execution possess, the case of a confessor is of his will, a limited construction included.-Pothier, Traité des Dohas been put on the residuary be- nations entre Vifs, s. 1.




Sect. I.-Of the General Object of the Statute 9 Geo. II.

c. 36.

II.Of Conveyances and Purchases within the 9

Geo. II. c. 36.
III.-Of Devises and Bequests of Lands and Per-

sonal Estate within the 9 Geo. II. c. 36.
IV.–Of Bequests of Money to be laid out in the Pur-

chase or Improvement of Real Estate. V.Of Bequests of Personalty which Fail on

account of being connected with a Devise of

Real Estate.
VI.--Of the Right of Heirs-at-Law, Devisees, and

next of Kin of Testators, to the Benefit of
Void Devises and Bequests to Charitable

VII.- Assets not Marshalled in Favour of Charities.
VIII.--Of Exemptions from the Statute 9 Geo. II.

c. 36.


Of the General Object of the Statute 9 Geo. II. c. 36. The object of the statutes of mortmain properly so called, which have been considered in a former chapter (n), was to prevent the conveyance of lands to bodies corporate; the statute of 9 Geo. II. c. 36, applies to conveyances and de

(n) Ante, pp. 5–17.

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