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A mortgage of turnpike tolls is within the statute. Thus, where the governors of the charity for the relief of the poor widows and children of clergymen claimed a mortgage for 5001. upon the tolls arising under acts of Parliament 3 George I., c. 14, 10 George I. c. 6, 11 George II. c. 6, for the repair of the Brentford turnpike road ; the security was taken upon the tolls simply, not including the toll-houses and gates : the Lord Chancellor said, “It occurred to me, that it had been determined that a mortgage of turnpike tolls is within the statute 9 George II. c. 36; the mortgagee would have a right to come into the Court of Chancery to have an account, and a receiver appointed; he would have a right, by the aid of that court, to have the tolls specifically applied to his mortgage. Consider what the point of law is from the nature of the interest; it is not at all within the mischief, but the consequences would open a much larger field for charitable donations; from the nature of the interest created by the act, these tolls, granted in perpetuity, are certainly a hereditament; it is in its nature an interest affecting land; he might bring an assize for these tolls. There is another species of toll which gives no right at all in the land, that is, a toll thorough.” He thought the case fell within the general words of the statute (9).
Money secured by assignment of poor-rates and countyrates is within the mortmain act, and will not pass under a bequest to a charity; thus, where a testator bequeathed the residue of his personal estate to the treasurer of the Society for Promoting Christian Knowledge, and under a decree for taking an account of his personal estate, it appeared by the Master's report, that part of the personal estate was lent, upon security of the poor-rates and county-rates, for building a gaol, under acts of Parliament giving authority to borrow money, and assign the rates for that purpose ; Sir William Grant, M. R., said, “there is no solid distinction between money borrowed upon such a security as this, and money borrowed upon turnpike tolls; it is difficult to show, that a
(9) Knapp v. Williams, 4 Ves. 430 n.
charity, by taking money upon the latter security, takes any interest in land; those tolls are duties imposed by act of Parliament upon passengers in respect of their passage along the road; the right to collect those tolls gives no direct interest in the land itself, though an interest in duties arising in consequence of a passage along or through the land: the poor-rates are made payable by those who are occupiers of lands, tenements and hereditaments (r); if a man is not an occupier of lands, he pays nothing, unless he has other property, but if he has only land, he pays in respect of that. A very nice distinction was taken for the plaintiff, that the public make him contribute, as having the land, not on account of the use of the land; that distinction is not very perceptible. In the one case the public call for the duty, on account of the passage along the land, that it may be laid out for the purpose of public advantage, the repair of roads and facilitating communication; in the other, they actually burthen the lands, by burthening the occupier with the duty, for other public purposes of convenience and advantage. It is true they are not raised out of the land only, but by far the greatest part is raised out of the land; for the land pays so much rent in consequence of the occupier being liable to the poor-rates, otherwise the landlord would have more rent: so all that is paid in respect of the land, is got from the land as much as the rent arises out of the land itself; it is more properly to be said to arise out of the land because it is in respect of the occupation, than the tolls for the mere privilege of passing.” As to that part of the poor-rates that is raised out of the personal property, it cannot be distinguished, nor the security apportioned by imputing so much to the produce of land, and so much from personal property, and, therefore, as under this security something real would go to the charity, the gift must fail altogether (s).
A bequest of bonds of the commissioners for the improvement of the city of Bath, bonds of the Corporation of Bath,
(r) Stat. 43 Eliz. c. 2.
Squire, 10 Ves. 41.
and bonds of the commissioners of a turnpike, for a charitable purpose, was held void (t).
The shares in some navigations, as in the Avon and the New River, are considered as real estate, and therefore, cannot be bequeathed to a charitable use, but, when so given, will go to the heir-at-law (u). The shares in several other canals, railroads and similar undertakings, have been declared by private acts of Parliament to be personal estate, and transmissible as such, and not to be deemed of the nature of real estate, as in the Macclesfield Canal Act (v), and Gas Company (w), the Thames Tunnel (x), the Southampton Railway Company (y), the Worcester and Birmingham Navigation (2), and Bridgewater Gas Light Company (a), and many other companies. But it does not follow that such shares, which are connected with land, although declared to be personal estate, can be given by will to charitable uses.
It seems that the several instruments called bonds, given for securing on the parish-rates the payment of 1001. each and interest to the holder, by parishes enabled to borrow money by such means, under local paving acts, is not a mere chattel, but a charge on the owners of houses, &c., in respect of such houses, &c., and that a bequest of such instruments would come within the statute of mortmain (6).
A bequest of money to be laid out on real security is clearly within the act 9 Geo. II. c. 36, as where a testator directed a sum of money to be laid out in land, or some real security, as a maintenance for a schoolmaster: for the words real security can only be taken in their common acceptation; and in the Court of Chancery there is a known distinction established between government and real securities, the latter meaning mortgages or other incumbrances affecting land. The word
(t) Howse v. Chapman, 4 Ves. 544.
(u) Buckeridge v. Ingram, 2 Ves. jun. 652; see 1 Barn. & Cr. 205, 697.
(v) 7 Geo. IV. c. 30, s. 79. (w) 7 Geo. IV. c. 8, s. 5.
(x) 5 Geo. IV. c. 156, s. 3.
(2) 31 Geo. III. c. 59; ex parte Horne, 7 Barn. & Cr. 632.
(a) 4 Will. IV. c. 33, s. 15.
real is a term adopted in the law, and can never be understood in any other sense than landed securities; as, for instance, in the distinction which has been made between real compositions and moduses. Real composition does not mean any substantial permanent security for the payment of the composition, but land substituted in lieu of tithes, or a rent-charge issuing out of land. An information therefore for carrying the trust into effect was dismissed, as to the sum directed to be laid out on real security (b).
6. Money given to exonerate lands in mortmain.] A sum of money bequeathed to redeem a mortgage upon property, the equity of redemption of which is vested in trustees for a charity, is void. Thus where a testator directed the residue of bis estate and effects to be disposed of, and the money arising from the sale to be paid to his trustees, to be by them invested in the public funds, or in some other good security, at their discretion, and the interest thereof to be paid to his wife for life, and at her decease he directed “ that the sum of 5001. be paid to the trustees of the chapel in Essex-street, whereof the Rev. Mr. Lindsay and the Rev. Dr. Disney are ministers, to be applied by them towards the discharge of the mortgage on the said chapel.” It appeared that the equity of redemption of the chapel had been vested in trustees, in fee, for the public worship and service of Almighty God therein, and had been conveyed to a mortgagee in fee for securing 10001., which sum was paid off and discharged in the life of the testator, and before the date and execution of his will, whereupon the chapel was re-conveyed to the trustees of it. The questions were, first, whether the legacy was void within the statute; secondly, if the legacy was not void by the statute, whether the express purpose of it having been satisfied by other means, that institution could have the benefit of it. It was held that, as the legacy was to be applied in the purchase of an interest in land, or a charge or incumbrance affecting the same, it came within the third section of the act, the
(b) Attorney General v. Bowles, 3 post. pp. 175, 176. Atk. 806; S. C. 2 Ves. sen. 547;
object of the legacy being for the purpose of procuring first, and then conveying to the trustees a further, greater, and more extensive interest than they had before. It was also held, that no intention, beyond that of securing the enjoyment of the chapel, could be collected; and that it could not be inferred that if the whole was not necessary for that purpose, that the surplus was to be applied for any other beneficial purpose in favour of the trustees of the chapel (c).
A bequest of a sum of money to pay off a debt secured by an equitable charge only upon a meeting-house, is void. Thus where a meeting-house and the land on which it was built had been paid for out of a fund raised by subscription; and by an indenture dated 18th May, 1807, the person of whom the land was purchased conveyed it to trustees, who were the subscribers of the fund, and who were thereby empowered to choose a treasurer, who was to receive all the seat-rents and other emoluments arising from the chapel, which were to be applied in paying the principal and interest of all monies due on the chapel and premises, and in keeping them in repair ; and the trustees were also empowered, after the interest of the monies so due should have been paid, to allow all or any part of the surplus for the support of the preacher, and, if necessary, to mortgage the premises, till the debt contracted should be reduced as far as they should judge expedient.
A testatrix by her will, dated 23rd October, 1820, gave all her personal estate to trustees, upon trust (amongst other things) to pay thereout the sum of 4001. to the trustees or treasurer for the time being of the above mentioned Methodist meeting-house, to be applied, in the first place, for and towards the paying off and discharging any debt or sum or sums of money which might be due or owing upon the said meetinghouse at the time of her decease; and the overplus, if any, to be applied to such other purposes of the said meeting-house as the trustees or treasurer for the time being should, in their
(c) Corbyn v. French, 4 Ves. 418. mortmain, was in principle the same In this case it was argued, but de- as if it had been given to improve nied by the court, that money given such land. See post. sect. iv. p. to disencumberland already in 188, &c.