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meaning would bind the court; or whether the court would not say, from the apprehension of the testator as to the statute of mortmain, the purpose would apply to the whole of the property. A very material part of the bill was the allegation that the defendants pretend the testator has, by some writing · or otherwise declared the trusts, upon which they were in
tended to take the residue of the real estate, and that they are willing to hold upon such trusts; and charging that the testator has not legally or in any effective manner declared the trusts; and if he has declared them, they are as to the real estate of which the testator was seised at the time of his death, null and void. They might be void at his death, but good at the time they were created. Surely the heir has a right to know whether the trusts were legally declared, and continued effectual to the testator's death. If bound to answer those questions, they may say there was a trust in writing, and that, if effectual, they must act according to it. The heir may say the trust was not well declared, or has become ineffectual in the whole or in part. In this view of the case, beyond all question the defendants must answer this bill; and if they must answer as to any of the allegations, it is very unnecessary to say at present whether they must answer as to the other part. His lordship would not prejudice that part of the case further than by saying, that upon an allegation of that kind, a trust against the policy of the law, the court insisted they should answer it (d).
An answer to a bill to discover a secret trust, which stated that it was not for the benefit of the plaintiff, was held insufficient on exceptions, for the defendant made himself judge of the title ; and it was said by the court, perhaps it might be a trust for a charity (e).
Where a bill was filed by an heir-at-law against residuary devisees, suggesting a secret void trust for charitable purposes, and there was no evidence of a trust expressed, nor
(d) Muckleston v. Brown, 6 Ves. mised ; 9 Ves. 518, n. 65–67. It appears that this case, (e) Newton v. Pelham, 2nd Aug. having been argued upon the answer 1746, cited i Eden, 514. admitting the trust, was compro
of such an engagement by words or by silence as would authorise the court to say, the devisees undertook to do that, which prevented the testator from imposing it upon them as a trust, the bill was dismissed with costs, unless the heir would take an issue devisavit vel non (f).
4. Bequests of Leaseholds.] Gifts of leaseholds to charitable uses are void, whether specifically bequeathed (g) or included in a residuary clause, either by name (h) or in a general de scription of the testator's personal estate (i); although it was insisted, in an early case (k), that the words of the statute
any estate or interest whatsoever” only applied to a devise by a testator of his own land, and not to that which he held as lessee ; but the distinction was overruled on the annulling clause. So where a testator, who was possessed of a lease for years from the crown of the right and power of laying chains in certain parts of the river Thames for mooring ships, and of all profits to arise therefrom, by his will devised the same to charitable uses, the lease was held to be a grant of an interest in land, and within the statute of mortmain, for it was clearly a franchise; and though the chains were moveable, it was no more personal than fairs or markets (l).
5. Bequests of money secured on mortgage, &c.] Money secured on mortgage, whether in fee or for a term of years, cannot be given to charitable uses either by a specific bequest or as part of the testator's general residuary personal estate ; although Lord Hardwicke appears to have once intimated an opinion which has not been followed, in favour of a residuary
(f) Painev. Hall, 18 Ves. 475. See Ambl. 216 ; White v. Evans, 4 Ves. Gibbs v. Rumsey, 2 Ves. & B. 299. 21; Pickering v. Lord Stamford, 2
(9) Shanley v. Baker, 4 Ves. 732; Ves. jun. 272,581; S.C. 3 Ves. 332; Attorney General v. Tomkins, Ambl. Paice v. Archbishop of Canterbury, 216; Attorney General v. Tyndall, 14 Ves. 368; Johnston v. Swann, 3 2 Eden, 207; S. C. Ambl. 614; Madd. 467. Hone v. Medcraft, 1 Br. C. C. 261. (k) Attorney General v. Grares,
(h) Attorney General v. Graves, Ambl. 155; S. C. 1 Coll. Jur. 448. Ambl. 155-158, n. (3), by Blunt. (1) Negus v. Coulter, Ambl. 367,
(1) Attorney General v. Tomkins, and n. (2), by Blunt.
bequest including a mortgage (m). Thus where a mortgagee in fee, being in possession of lands under a judgment and writ of habere facias possessionem, made his will, and after reciting that he was possessed of certain sums of money due by mortgage and other specialties, gave the money in any wise due by mortgage, notes or otherwise, on the estate of the mortgagor, whereof he was possessed by habere, &c.; and all his personal estate in trust, to pay his debts, legacies, and funeral expenses ; and afterwards, that the trustees should settle a place for the schooling and teaching so many poor boys, clothing them, &c., and to pay the master for such teaching the interest of the money he was possessed of by securities on the estate; and he devised to them all the money due on that estate, to be laid out at interest on good securities, to apply the interest thereof to the maintenance of the said school for ever: on an information to establish the charity, it was insisted by the relator, that the mortgaged premises were not devised, but only the money due by mortgage, and that the heir-at-law of the testator ought to be a trustee for the charity, the devise not being within the mortmain act, as it was only a devise of the beneficial, not of the legal interest which descended to the heir; the lands were alienable, and it was given in money and not as land.
Sir John Strange, M. R., said, “The distinction made on the part of the relator between a devise of mortgaged premises and of the money due on mortgage, did not seem well founded. By a gift of all one's mortgages to A. the whole beneficial right passes to him; and be the legal interest either in the heir or executor, as it is a mortgage in fee or term for years, each will be considered as trustee for A., who will be permitted by the court to use their names to get the money, or make the pledged estate his own by foreclosure. If it would be so in that case, then would it be equally so though the phrase used is money due on mortgage ; where, unless the court construes it to pass the whole interest of the mortgagee, it will make it in effect a void devise, or at least put it in the power of a third person, whether the devisee
(m) Vaughan v Farrer, 2 Ves. sen. 182.
shall take thereby or not. Even if the whole legal interest did not pass by the devise to the trustees and their heirs, the heir at law was a trustee for them, and they were entitled to every right, the devisor had to compel payment of the money, or to make the estate their own by foreclosure. The mortmain act is not a total prohibition to give land or personal estate to be laid out in land, but only sub modo ; and any variation therefrom is declared to be a public mischief. Then such a construction ought to be made by the court as is most effectual to repel the mischief and advance the remedy: therefore, if this devise tends to let in the mischief intended to be prevented, it is the duty of the court to guard against it taking effect. The only consideration for the court is, whether the gift in this case comes within the prohibition or not; and I am of opinion, that this devise comes within the express words and plain intent thereof. The design of the act was to lay a restraint on every method whereby land might possibly come to such hands, unless by the manner therein prescribed : the first part therefore is absolute, leaving, however, more liberty as to personal estate ; but seeing that would not sufficiently answer the intent of the Legislature if confined to land, it adds a prohibition as to personal estate, that it should not be given to be laid out in the purchase of land. But was there no other way whereby the interest in land might come to a charitable use? Yes, money due on mortgage was a charge and incumbrance on land, the payment of which depended on the pleasure and ability of the mortgagor; therefore the Parliament has by express words taken in this by the third clause (n), the words of which, if they do not extend to the case of mortgages, I am at a loss to know for what purpose they were put in. The meaning was, that you shall not give to a charitable use, that which is, or may be a charge on land, though not so at the time of the gift. Suppose a sum of money is devised to be put out on a mortgage of freehold lands, is not this restrained by the act? If then a mere personal chattel may not, will it better the case, that
(n). Ante, pp. 119, 120.
at the time of the gift it is actually vested ? and how absurd would it be in the Parliament otherwise? Though by the first clause securities for money are allowed to be given under the requisites of the act, yet the subsequent words of that clause afford an argument, that mortgages affecting lands actually at the time of the gift will not come within the meaning, as there may be other securities for money not immediate liens on lands, as debts, bonds, &c. I should think that on the first clause, mortgages are prohibited; but if doubtful on the first, the words of the other clause take it in expressly; and so on that latter clause chiefly I found my opinion, and it contains words not in the statute 11 & 12 Will. III. c. 4, for preventing growth of popery; and the cases show, the courts have made as liberal a construction to prevent the mischief as possible ”(o).
In the Attorney General v. Caldwell (p), it was decided, that a general bequest of personal estate to charities was void, so far as it related to a mortgage for a term of years.
Where the property comprised in mortgages, and the principal money due thereon, were assigned by deed duly inrolled, to the master and fellows of a college, in trust for the rector of a parish for the time being, and the donor died within twelve months afterwards, it was held, that the gift was not set up by a will referring to the deed, and giving the advowson of the living beneficially to the college. For the will could not be connected with the deed so as to make the one operate upon the other by relation ; but they stood singly, and then the deed being a gift not beneficially to the college, but to the college in trust for another object, which was not within the exception in the act in favour of colleges, necessarily fell to the ground, by the death of the grantor before the completion of the period assigned by the statute for giving full effect to such a donation (q).
(Attorney General v. Meyrick, Archbishop of Canterbury, 14 Ves. 2 Ves. sen. 44. See 4 Br. C. C. 221. 368; Pickering v. Lord Stamford, 2
(p) Ambl. 635; see also Howse Ves. jun. 283, 556, 3 Ves. 332, 492. v. Chapman, 4 Ves. 542; Chapman (9) Attorney General v. Munby, v. Brown, 6 Ves, 407 ; Paice v. 1 Mer. 327.