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for the grantor, who thereby reserved to herself absolute and exclusive power from time to time and at all times during her natural life, by writing under her hand to appoint such ministers to officiate in the said edifice as to her should seem meet, without the intervention, intermeddling or interruption of the said trustees or their successors for the time being ; and that ministers to be appointed by her should receive the contributions to the said chapel in such shares and manner as she should direct. And the grantor also reserved to herself exclusive authority during her natural life, by any writing under her hand and seal, to make any further or other directions for the better management of the said edifice or building, or for the more decent and orderly ministration of religious worship therein.”
It was determined by Lord Thurlow that the deed was valid, as it purported an immediate conveyance to the trustees, under which they might have taken possession immediately; and as some of the trusts for collecting and distributing the contributions were to be immediately executed by the trustees, which was not varied by their subsequent conduct, (none of whom, except one, whom the grantor had married, interfered with the management of the chapel): for the powers reserved were not “reservations for the benefit of the grantor," but merely powers to appoint preachers and to make regulations for the future conduct of the charity; and there was no power reserved which enabled the donor to defeat the charitable use itself, nor after the execution and inrolment of that deed to apply the chapel, or the land on which it stood, to her own use and benefit (f).
An assignment executed more than twelve months before the grantor's death and duly inrolled, of a leasehold estate to which the grantor was entitled for a term of years with benefit of renewal, to the master, fellows and scholars of Trinity College, Cambridge, and their successors “ in trust, to permit the rector for the time being of a parish to hold, use and occupy the same during his incumbency, or otherwise to
(f) Grieves v. Case, 2 Cox, 301.
receive and take the issues and profits thereof for his own use and benefit” was held to be valid, and not affected by the circumstance of the grantor being himself rector of that parish at the time of the grant, and retaining the deed in his own possession.
For the grant did not contain any reservation, and the gift took effect immediately in possession, and there was no power of revocation, nor trust, express or implied, from which the grantor, in his individual capacity, could derive any benefit; and although it was said that it appeared on the face of the deed, the grantor was rector, and his gift was a gift for the benefit of the rector, yet it must on the other hand, be acknowledged that it was a case for which the statute had made no provision, and which was entirely out of its contemplation; that the gift itself was absolute and irrevocable; the benefit which the grantor enjoyed under it only accidental ; his enjoyment of the property no longer as owner, but attached to the situation in which he happened to be placed; the moment he quitted that situation he lost all enjoyment of the property, and that might be by circumstances over which he had no control, by deprivation, or appointment to a higher benefice, perhaps at the moment when he had executed the instrument. The Legislature had no intention or thought of precluding that sort of incidental advantage ; and to construe the statute otherwise, would be to prohibit a rector from bestowing any endowment on his own living (g).
3. Of inrolment of the conveyance.] A conveyance of lands, or any interest in lands, to charitable uses, must be executed twelve calendar months before the death of the grantor, and inrolled in chancery within six calendar months after its execution; the non-compliance with those requisites of the act, renders such a deed void, and the grantor may himself take advantage of the want of inrolment, and recover the property conveyed, in ejectment (h).
(9) Attorney General v. Munby, (h) Doe d. Wellard v. Hawthorn, 1 Mer. 327, 342
2 Barn. & Ald. 96; Doe d. Preece K
It is sufficient if the deed be executed by the grantor at the time of its inrolment, although the grantees have not executed it).
It should seem that inrolment is only required on the original gift to charitable purposes, and consequently, that a conveyance from old trustees, or the heir of the surviving trustee, to newly appointed trustees upon the trusts declared by the first gift, would not require inrolment; but it may be advisable, in order to avoid any question upon the subject, to inrol a conveyance to new trustees.
The court will not, after a period of 70 or 80 years, presume in favour of a charity that a bargain and sale has been inrolled, upon the ground, that as certain forms are required by statute, the judges are not at liberty to presume against the policy of the law, and by dispensing with such forms, to give to the charity an estate in the conveyance of which they had not been observed; although one of the judges remarked, that it might have been otherwise if there had been a chasm in the records (k). So in an action for dilapidations by a rector, it appeared, that the absolute seisin in fee of the land upon which part of the buildings in question stood, was in certain devisees after the statute 9 George II. c. 36, and that no conveyance had been inrolled according to the first section of it, nor any disposition made of it to any college according to the fourth section; it was held, that though successive rectors had been in possession of the land for above 50 years past, yet no presumption could be made of any such conveyance having been inrolled, (which, if it existed, the party might have shewn,) and consequently, that the rector had no title to the land; although it appeared also, that one of those devisees was the then rector, and that the title to the living was in Baliol College, Oxford (1).
A conveyance of lands to charitable uses, which fails on account of the death of the grantor within twelve months, does not revoke a prior will; thus, where a testatrix seven days after having duly made a will, in execution of a power devising estates to trustees, conveyed part of the property to trustees for a charitable foundation, by a deed of bargain and sale, which was duly inrolled in chancery in her lifetime; and nine days after the execution of such deed, she made a codicil to her will, attested by three witnesses, by which she appointed another trustee, and ordered her money which was out on mortgage to be first applied in payment of debts, and died within a year after the execution of the deed; it was held, that the testamentary appointment was not revoked, as to the freehold estates comprised in the conveyance (m).
v. Howells, 2 Barn. & Ad. 744; Barn. & Ald. 149; ante, p. 123. See Attorney General v. Munby, 1 Mer. 1 Jac. & Walk. 619, 620. 327.
(1) Wright v. Smythies, 10 East, (1) Grieves v. Case, 2 Cox, 301. 409. (k) Doe d. Howson v. Waterton, 3
4. Of purchases within the second section of the act (n).] The express intention of the first sectiou of the act is to render it unlawful for any person to give any land or money to be laid out in land for any charitable use whatsoever, which is not qualified by the second section, so as to leave a person at liberty within twelve months to give to charitable uses, any land which within the twelve months he has purchased for a full and valuable consideration; for the mischief which the act intended to guard against is not less, because the grantor by whose improvident disposition the land be
(m) Matthews v. Venables, 2 Bing. ment without livery of seisin, though 136; S. C. 9 Moore, 286. This not sufficient to pass the estate, will was a case from chancery, and the operate as a revocation of a prior dereasons of the court do not appear, vise.—1 Roll. Abr. 615, pl. 6, 1 Ves. it was, perhaps, decided upon the sen. 178, 180, 187; Mountague v. ground, that the codicil amounted Jeoffereys, Moore, 429, S. C. Poph. to a re-publication of the will, or 108, 1 Roll. Abr. 615, pl. 4. See 3 that the gift to the charity was a Atk. 72, 73; Sparrow v. Hardcastle, complete nullity, or a conditional 3 Atk. 803, 1 Bl. R. 349 ; see Vawser disposition, to take effect only in v. Jeffrey, 16 Ves. 519, S. C. 2 case the donor lived to the end of Swanst. 268, 3 Barn. & Ald. 462 ; 12 months.
Shore v. Pincke, 5 T. R. 129; EilIt seems to be settled that imper- beck v. Wood, 1 Russ. 564, 1 Powell fect conveyances as a bargain and on Devises by Jarman, 583—588. sale without inrolment, or a feoff- (n) See ante, p. 119.
comes inalienable, had not been the owner of it for twelve complete months: therefore, where a party having purchased certain lands and hereditaments, which by his direction were conveyed by the vendor by bargain and sale, duly inrolled in Chancery, to trustees for charitable purposes, and the donor died within twelve calendar months after the execution of the conveyance; it was held to be void under the act, which, it was contended, enabled a person to purchase lands for charitable uses within twelve months of his death, although he could not convey his own lands for that purpose within that time (o).
Lord Hardwicke said, that if a large personal estate is left to trustees for a charitable use, which they direct, and there is no occasion to come to a court of equity for direction, there is nothing in the statute 9 George II. c. 36, restraining the trustees from laying out that in land, because by the express proviso, all purchases to take effect in possession are good, although the court would never direct the fund to be laid out in land (p). But it has lately been decided, that a trustee cannot indirectly give effect to a bequest contrary to the mortmain act, by purchasing lands after the testator's death; and therefore, where a trustee to whom a legacy was bequeathed upon trust, to purchase lands for charitable purposes, received the money and with it bought lands which were conveyed to himself upon the trusts expressed in the will, it was held, that the trust so executed, being contrary to the mortmain act, would not be carried into effect by the Court of Chancery (9). So a bequest of money for enabling a trustee of a charity to complete a contract for the purchase of land, is void by the statute (r).
Where a decree by consent had been made for investing a sum of money given for a charity in the purchase of lands,
(0) Price v. Hathaway, 6 Madd. donor. 304. It appears that the vendor in (p) Vaughan v. Farrer, 2 Ves. this case claimed to retain the lands
sen. 188. without repayment of the purchase (9) Attorney General v. Ackland, money, but the court directed an Russ. & Mylne, 243. inquiry for the heir-at-law of the (r) Corbyn v. French, 4 Ves. 431.