Thus where a testator devised real estates unto and to the use of G. Sharp, his heirs and assigns for ever, and added these words: "But my wish and desire is, that the said G. Sharp do in his lifetime, by proper deeds, convey, settle and assure the said manor, capital messuage, farm, lands and hereditaments to some charitable uses, subject to an annuity, to take place at his decease, and not before; the particular uses to be limited I leave entirely to his discretion, having the fullest confidence as well in his judgment of the choice of proper objects, as in his integrity in the disposition thereof, according to the wish by me expressed; but it is my intent and meaning that the said G. Sharp shall enjoy the said estate, subject as aforesaid to his own proper use and behoof during his life." It was held, that G. Sharp took an estate for life only, for the fee was given for the purpose of enabling him to execute a trust forbidden by the statute 9 Geo. II. c. 36, which avoids not merely the trust but the legal estate given: for otherwise a party might consider himself bound in honour, though not in law, to convey the estate to the uses prohibited. The gift being accompanied with words "wish and desire," the devisee could not enjoy the estate for his own benefit; and the object of the devise being sufficiently definite, the Court of Chancery, but for that statute, would have fixed the particular charitable uses to which the estate was to be applied (p).

But where a testator devised an estate to the preacher of a meeting-house for his life only, on express condition that he should without delay convey the same to trustees" for the use and support of the preaching of the word of God at such meeting-house for ever;" and in case such preaching should be discontinued, the testator directed the same to be applied towards a school for teaching the poor children of Lyndhurst for ever; and gave to the preacher full and absolute authority to settle the same accordingly. On an ejectment by the testator's heir-at-law, it was held that the preacher took an estate for life, though the subsequent limitation was void.

(p) Doe d. Burdett v. Wrighte, 2 B. & Ald. 710.

And that the defendant's religious persuasion raised no objection to his taking the estate, and that the devise over to the school in case the preaching should be discontinued, only related to the limitation after the defendant's death (q).

3. Of honorary and secret trusts.] This statute intended to prevent all trusts or devises for charities by any art or contrivance; and an honorary trust will avoid a will as much as one declared in the most solemn manner. Nemo potest facere per obliquum, quod non potest facere per directum. Therefore, where by a will attested by three witnesses, lands were devised to three persons and the heirs of the survivor, and a bill by the testator's heir-at-law stated that it was upon a secret trust for a charity, declared by an instrument executed at the same time as the will, noticing the statute of mortmain, and requesting the executors to apply his estates for charitable purposes, and attested by two witnesses only, which was admitted by the answer. The court decreed that the devise and bequest were an intended trust for the benefit of a charity, and as such were void by the statute, so far as they related to the charity (r).

A devise was held to be void, and a re-conveyance decreed in favour of an heir-at-law, where it was proved to have been made upon a secret trust for a charity; and conveyances had

(q) Doe d. Phillips v. Aldridge, 4 T. R. 264. Lord Commissioner Ashhurst said, giving due merit to this case, perhaps it was not looked into as much as it might have been. The ground of it was, that it was nothing more than a bequest beneficial to the party, without annexing to it a stipulation of preaching in the chapel, which made it a charitable bequest as to the future preachers; Grieves v. Case, 1 Ves. jun. 554. See post.

(r) Boson v. Statham, 1 Eden, 508; S. C. 1 Cox, 16. See Bishop

v. Talbot, cited 6 Ves. 60. A note or memorandum in writing from a trustee promising to execute a declaration of trust, Bellamy v. Burrow, Cas. Tem. Talbot, 97; an answer in chancery confessing a trust, Hampton v. Spencer, 2 Vern. 288; Cottington v. Fletcher, 2 Atk. 155; a letter from a trustee disclosing the purposes of a devise to him, Crook v. Brookeing, 2 Vern. 106; if they sufficiently discover the intention of the parties, will be evidence of trusts in a court of equity.

been made by the devisees and trusts declared, although they denied by their answer having made any promise (s).

It is settled that charitable uses and trusts come within the seventh section of the statute of frauds (t), which requires all declarations, or creations of trusts or confidences, of any lands or hereditaments to be manifested and proved by some writing, signed by the party who is by law enabled to declare such trusts or by his last will in writing, or else they are void. Thus it was clearly held that a will made before this act must have been duly executed to create a charitable use, and that the court will not set up a trust for a charity without a declaration in writing. By will of the 1st of August, 1738, the testator, after reciting that A. had conducted his affairs with great integrity for many years, that B. had served him for about 20 years as his housekeeper with great fidelity, devised to A. and B. and their heirs, all his messuages, &c. and gave to his only child and heir-at-law a small legacy; and strictly enjoined her to submit to the disposition he had thereby made, as she was handsomely provided for by his marriage settlement and otherwise. After the testator's death, a paper writing, signed by him, was found, of the 9th of August, 1738, wherein he recommended his executor A. to assist B. and to see the will performed according to his humble request, and according to the wonted and charitable disposition of the said A. towards all men, to bring the whole affair to its desired issue. It was in proof that the testator had a little before his death given directions for the plan of a public building; and several witnesses were also examined to prove his intent to leave his estate for building a school or hospital. A bill was brought by the heir-at-law, seeking a discovery of a secret trust, alleged to have been left by the testator, and to have the devise set aside as void by the statute of mortmain. The defendants insisted on the will as an absolute gift to them, and that no parol evidence of a trust for a charitable purpose was admissible by the statute of

(s) Edwards v. Pike, 1 Eden, 267. General v. Barnes, 2 Vern. 597.

(t) 29 Car. II. c. 3. See Attorney

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frauds. Lord Hardwicke, after stating it to have been frequently determined that devises to charities and for charitable purposes were within the statute of frauds, said the next consideration was, whether the paper writing of the 9th of August was a sufficient declaration of trust; and he thought it was not. Had the testator made a feoffment to himself and his heirs, that paper, he said, might have been a good declaration of trust within the other clause of the statute of frauds; but the principal case was that of a will, which passed both the legal and beneficial interest to the devisee. The will was dated the 1st of August and the paper the 9th of August, so that if the paper did any thing, it must enure as a revocation of the will, which it could not do for want of a proper execution within the statute of frauds; as trust estates could no more pass by any writing not properly attested, according to the 6th section, in the presence of three or more witnesses, than legal estates could; and therefore the bill was dismissed (u).

(u) In this case the defendants pleaded as to so much of the bill as sought the discovery of the secret trust, or any parol or other declaration of trust of the real and personal estates of the testator not made by him in writing and not signed by him, that the testator was seised in fee and by his will disposed of his estates absolutely to the defendants and their heirs; and that by the statute 29 Chas. II. c. 3, all declarations or creations of trust of any lands should be manifested by some writing, signed by the party or by his last will, or else should be utterly void; and therefore that the discovery of such parol declarations of trust, as sought by the bill, was no ways material to the plaintiff's case, and that the defendants were not obliged to answer it, and therefore pleaded the will and act in bar.

In

answer to the rest of the bill, one defendant denied that certain alleged or any other directions had ever been given to her by the testator, touching any charitable use or any other trust whatsoever. Both the defendants likewise denied that they were ever named or appointed in any writing, to their knowledge, to have the management of any charitable use as trustees, or that the testator signified to them, in any kind of writing, his design to settle his estate, in trust, for the benefit of any charitable uses. The plea was ordered to stand for an answer, with liberty to except; and the benefit of the plea was saved till the hearing of the cause.-Adlington v. Cann, 3 Atk. 141; S. C. Barn. 130. See also Lloyd v. Spillet, 2 Atk. 148; S. C. Barn. 384, 3 P. Wm.'s 344; 8 Vin. 149, pl. 32. See Boson v. Statham, 1 Eden, 514.

The case of Adlington v. Cann, seems to have proceeded on the ground that there was nothing in the will attaching a trust; for although the testator afterwards, by an unattested paper expressing his own intention not communicated to the devisees, said, his purpose was to devote the estate to a charitable use; yet the devisees might object, that they had taken under a will well executed, and were not affected by a subsequent paper, to which they were strangers, not attested according to the statute of frauds. But it is very different where the devise is made upon a previous engagement by the devisees binding their conscience, and there is a privity of purpose between them and the testator (x).

Courts of equity will not allow the statute of frauds to be used to cover a fraud; and, therefore, if a devisee undertakes to pay a sum of money to a third party, and in consideration of it an estate is given to him, he will be compelled to answer a bill filed for the purpose of establishing the claim (y). For notwithstanding the statute of frauds, the court will interpose to prevent a party from being deprived of his rights by means of fraud. So the court will compel persons to discover secret agreements, made with a view to evade the provisions of the statute of mortmain, and will call upon devisees to state whether they took an estate devised to them, as they legally cannot do, for charitable purposes; and a devisee must answer a bill of this kind, resting simply upon an allegation without evidence or inference from the will, showing that they were to take upon trusts for charity. Thus, where a bill was filed by an heir-at-law, stating that the testator, being seised in fee of certain lands, and being desirous of devising the same for erecting a chapel thereon for the sect called Methodists, but knowing that an express devise for that purpose would be void, as within the statute of mortmain, requested the defendant to undertake, in case he devised the premises to him, to build the said chapel thereon, and the defendant having undertaken so to do, the testator, by his will, dated 27th April, 1802, devised to the defendant and (x) See 9 Ves. 519. (y) 6 Ves. 67; 9 Ves. 519.