138

SECTION III.

Of Devises and Bequests of Lands and Personal Estates within the Statute 9 Geo. II. c. 36.

1. Of Wills executed before the act by Testators who died after.

2. Of Words which will create a Trust, p. 141.

3. Of Honorary and Secret Trusts, p. 144.

4. Bequests of Leaseholds, p. 154.

5. Bequests of Money due on Mortgages, Tolls, Poor-rates, and County-rates, p. 154.

6. Money given to exonerate Lands in Mortmain, p. 161. 7. Money charged on Real Estate, p. 163.

8. Money to arise from the Sale of Real Estate, p. 164.

THE statute having provided that all gifts to charitable uses affecting lands must be by deed (y), it follows, as a necessary consequence, that all devises of lands or any interests in them to any of the purposes already enumerated in a former chapter (z), will be void.

The statute avoids the whole devise, and not merely the illegal trust; therefore land given by will to charitable uses will descend to the heir-at-law-the third section of the act making void all assurances of any lands or any estate therein to or in trust for any charitable uses whatever (a). But if part of the trust be good, it seems that it will support the legal estate (b).

1. Of Wills executed before the act by testators who died after.] Devises to charitable uses executed before this statute, were valid, although the testator did not die until after the act had come into operation. Thus where a testator in 1734,

(y) Ante, pp. 118, 119. (2) Ante, pp. 58-82.

(a) Ante, pp. 119, 120; Adlington v. Cann, 3 Atk. 155; Doe d.

Burdett v. Wrighte, 2 Barn. & Ald. 710. See Doe d. Toone, v. Copestake, 6 East, 328.

(b) 1 Ves. sen. 187.

made a devise to charitable uses and died in 1736, a month after the new statute of mortmain came into operation, without having revoked his will, it having been certified by the judges, on a case from the Court of Chancery, that such devise was good notwithstanding the act, the will was established, and the trusts of the charity directed to be carried into execution (b). So a devise before the act was held not to be rendered void by a codicil made after, not disturbing the charitable trust, but devising to the same use and adding two more trustees, although the codicil attempted to unite another piece of land in the trust (c). So a will, executed before the statute, directing B. to settle a freehold estate to pay a sum not exceeding 1007. per annum upon such a trust, for such a part of the poorer people of a parish as he should think to be a most proper charity; and B. in pursuance thereof, by will executed after the statute, appointed a sum less than the 1007. per annum, it was held that the appointment was not avoided by it, as the execution of the power had relation to and was part of the will (d), and therefore no more affected by the statute than a will inchoate before the statute where the testator died after it (e): for the statute respected only the disposition of owners, and not the case of persons executing a power given before it; but that the amount to be appointed was discretionary in B. and not to be increased, under the 43rd Eliz. c. 4, to the whole amount given by the will to A. (f).

The execution of a trust created by a will executed before the statute, by a testator who died after, was decreed by the Court of Chancery. Sir George Downing, by will dated in December, 1717, devised freehold, copyhold and leasehold estates to trustees and their heirs in trust (after the determination of prior limitations in his will, which afterwards failed,) to purchase with the rents, the inheritance of a piece of ground in

(b) Ashburnham v. Bradshaw, 2 Atk. 36. See Attorney General v. Andrews, 1 Ves. sen. 225.

(c) Willet v. Sandford, 1 Ves. sen. 178, 186.

(d) Co. Litt. 112 a.

(e) Attorney General v. Bradley, 1 Eden, 482.

(f) S. C. ibid; See Rumbold v. Rumbold, Ves. 69.

Cambridge, proper for the erecting a college, with other buildings fit for that purpose, to be called Downing College, and to obtain a royal charter for the founding of such college, and incorporating a body collegiate by that name in the University of Cambridge; which should consist of such head or governors, and of such fellows, scholars, members and other persons for the time being; and should be maintained, governed and ordered by such rules and orders, and in such manner, and should be professed and taught such useful learning, as his trustees and their heirs, with the consent of the Archbishops of Canterbury and York, and the masters of St. John's College, and Clare Hall, in Cambridge, in being at the founding the same college, should direct and appoint; and from and after the founding and incorporating such college, or body corporate, the said trustees and their heirs, should stand and be seised of all and singular his manors, &c., in trust for the said collegiate body and their successors, for ever; and he gave his leaseholds upon the same trusts. The testator died in 1749. And upon an information at the relation of the chancellor, masters, and scholars of the University of Cambridge, after his death, it was declared, that the trusts of the will ought to be carried into execution, in case the king should be pleased to grant his charter to incorporate the college, and his royal license for such incorporated college to take the devised premises in mortmain, and the heirsat-law of the testator were to be at liberty to apply to the crown for that purpose (g).

But where a testator, previously to the statute, devised his real estate, and also his personal estate to be laid out in land for a charity, and by a codicil, not attested, subsequent to that act, confirmed the will; it was held to operate as a new will as to the personalty, and consequently to be void as to that (h).

Where A. before the statute, gave real and personal estate

(g) Attorney General v. Downing, Dick. 414; S. C. Wilmot's Notes, 1-35; Ambl. 550, 571; 3 Ves. 714; 5 Ves. 300; 8 Ves. 256. A

charter of incorporation was granted 22nd Sept. 1800.

(h) Attorney General v. Heartwell, 2 Eden, 234; S. C. Ambl. 451.

to a use that would be within the statute, and to another use that would not be affected by it; and B., after the statute, gave personal estates to the uses of A.'s will; the estate of A. having been sufficient for the first use, the whole of the second gift was decreed to the valid use (i). So, a will in favour of a charity, executed before the act, was held to be revoked by codicils made after it came into operation, in favour of a particular devisee, founded on erroneous advice given to the testator, that the will was void by the act (k).

2. Of words which will create a trust.] Trusts may be created not only in express terms, but by any words of a testator intimating a request, wish, hope, desire, recommendation, &c. where the property given is certain, and the objects to be benefited by it are precise and distinct (1). Therefore, if a testator gives property, whether real or personal to another, absolutely or for life, and adds words of the above import, whence it may be inferred that the testator intended that the devisee on his death should give all or a definite portion

(1) Attorney General v. Hartley, v. Ball, 3 Mer. 437; Lansdowne v. 4 Br. C. C. 412.

(k) Attorney General v. Lloyd, 3 Atk. 551; S. C. 1 Ves. sen. 32.

(1) Brest v. Offley, 1 Ch. Rep. 130; Parry v. Juxon, 3 Ch. Rep. 21; Eacles v. England, Prec. Ch. 200, S. C. 2 Vern. 466, 1 Eq. Abr. 297, pl. 3; Clowdsly v. Pelham, 1 Vern. 411; Jones v. Nabbs, 1 Eq. Ab. 404, pl. 3; Richardson v. Chapman, 1 Burn. Eccl. Law, 240; Vernon v. Vernon, Ambl. 3; Clifton v. Lombe, Amb. 519; Massey v. Sherman, Amb. 520; Nowlan v. Nelligan, 1 Br. C. C. 489; Pierson v. Garnet, 2 Br. C. C. 38, 226; Lewis v. King, 2 Br. C. C. 600; Horwood v. West, 1 Sim. & Stu. 387; Parsons v. Baker, 18 Ves. 476; Taylor v. George, 2 Ves. & B. 378; Forbes

Lansdowne, 2 Bligh, 92; see 2 Roper on Legacies, 373–389, 3rd ed. But it is otherwise where the gift or the object appears to be uncertain. Palmer v. Schribb, 2 Eq. Abr. 291, pl. 9; Buggins v. Yeates, 9 Mod. 122; Harding v. Glyn, 1 Atk. 469; Le Maitre v. Bannister, 2 Br. C. C. 40; Bland v. Bland, 2 Br. C. C. 43; S. C. 2 Cox, 349; Harland v. Trigg, 1 Br. C. C. 142; Wynne v. Hawkins, 1 Br. C. C. 180; Sprange v. Barnard, 2 Br. C. C. 585; Hill v. Bishop of London, 1 Atk. 620; or where the gift confers the absolute ownership on the devisee, enabling him to diminish the capital in his lifetime.-See Cunliffe v. Cunliffe, Amb. 686; Curtis v. Rippon, 5 Madd. 434.

of such property to certain objects pointed out and ascertained by the testator, a trust in their favour will be created.

Words of expectation in a will, not amounting to recommendation, will not create a trust, particularly where the words apply not simply to the property given by the testator, but to all the property, having no certainty of amount, which the parties might happen to possess at their deaths (l).

Although no trust can be enforced in equity unless the property given is certain, and the objects to be benefited are also certain, yet in the case of charities (under the doctrine of cy pres, as will be hereafter shewn), a bequest to charitable purposes however general, will not fail on account of the uncertainty of the objects, but the court will apply the property in favour of objects not specified by the testator, as near as possible to his probable intention (m).

It may be observed, that the current of modern decisions has been against converting a legatee into a trustee (n).

This broad rule was laid down by Lord Alvanley, wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shows clearly, that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it. The word recommend proves desire, and does not prove discretion. If a testator shows his desire that a thing shall be done, unless there are plain words or necessary implication that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall be considered as acting under a trust. Recommend is a request and more, to request a man to do anything is to recommend it, and vice-versa. The words cannot be distinguished (o).

(1) Lechmere v. Lavie, 2 Mylne & K. 197.

(m) Attorney General v. Davies, 9 Ves. 405; Attorney General v. Coopers' Company, 19 Ves. 189; Attorney General v. Wansay, 15 Ves. 234; Ex parte Jortin, 7 Ves. 340.

(n) Sale v. Moore, 1 Sim. 534; Meredith v. Heneage, Id. 542; Wright v. Atkins, 1 Ves. & B. 313; S. C. 1 Turn. & Russ. 143.

(0) Malim v. Keighley, 2 Ves. jun. 335, 529. See 7 Price, 221.