Imatges de pàgina

discretion, see fit. At the death of the testatrix there was a debt of 4391. 12s. 7d. due upon the meeting-house to the subscribers, and that debt remained unpaid. The subscribers claimed to have a lien on the title deeds of the meetinghouse, (which were in their possession,) and to be equitable mortgagees thereof, for the amounts of their respective subscriptions, but there was no other debt affecting the meetinghouse. The bequest was held to be void, the Master having expressly found that there was a debt on the meeting-house, and there being no substantial difference between a legal and an equitable mortgage ; if it were otherwise, a mortgage after a mortgage in fee, would not be within the statute ; and the discretionary power given to the trustees to apply the legacy to other purposes connected with the chapel, could only arise in the event of there being no debt (d).

7. Money charged on real estate.] Charges on real estates, whether freehold, leasehold, or copyhold, in favour of charities, are void, by the express words of the statute (e).

A condition attached to a devise of real estate to pay a sum of money to a charity is clearly void; and it makes no difference if the sum be payable, in the first instance, to the executors, and be included in a residuary bequest of real and personal estate for the benefit of a charity; for although a testator may turn part of his realty into personalty, yet such conversion must be for lawful purposes, and the statute of mortmain makes void all charges, trusts, sums of money, &c. devised out of land to a charity (f).

The lien which a vendor has upon land for the amount of his purchase-money remaining unpaid, is an interest in land within this act; therefore where a testator, who had given his personal estate to charitable uses, contracted for the sale of a real estate which was not completed in his lifetime, it was held that the purchase-money did not pass by his will to the

(d) Waterhouse v. Holmes, 2 Sim. 17 Ves. 462 ; ante, pp. 119, 120. 162.

(f) Arnold v. Chapman, 1 Ves. (e) Attorney General v. Lord Wey- sen. 110. See post. sect. vi. 1. mouth, Ambl. 24, 25; Currie v. Pye,

charity (f), although it had been otherwise decided in a previous case (g). It will also follow that a bequest of an equitable mortgage to charitable uses will be void.

The bequest of a residue of personal estate for charitable purposes was declared void, so far as the same consisted of mortgages and a particular debt due on a judgment to the testator, which was to be considered as an interest arising out of lands (h).

A legacy substituted for or added to another, is generally to be raised out of the same fund, and subject to the same conditions, as the original legacy (i). So where a testator by his will declared that his debts should come out of his real estate and not out of his personal estate, and gave the real to trustees charged with some charitable legacies, and one to each trustee, and by a codicil he removed one trustee and revoked his legacy, appointed another with the same legacy, and also revoked all the charitable legacies mentioned in the will, and gave a less legacy to one of the charities before mentioned, and other legacies to charitable institutions not named in the will, without specifying any fund out of which they were to be payable: it was held, that the charitable gifts were charged on the real estate, and therefore void (j).

8. Money to arise by sale of real estate.] Although the statute 9th Geo. II. c. 36, contains no express words prohibiting a bequest of money, to be produced by the sale of lands for charitable purposes, yet it is settled by construction that such a bequest is within the spirit and meaning of the law (k). Thus where a testator devised all his real estates to his executors, in trust, to sell, and after payment of certain legacies bequeathed the money to arise by the sale of his real estate, and the intermediate rents and all his personal estate to his executors, in trust, to pay one moiety to the governors of Bethlehem Hospital, for the support and benefit of incurable lunatics, and the other half to the treasurers of St. George's Hospital, to be applied in carrying on the designs of that hospital. On an information, praying that the testator's estate might be sold and the money with the intermediate profits applied according to the will, to which the testator's heir pleaded the statute 9th Geo. II. c. 36, the case was held to be clearly within that act, which prevents both the conveyance of lands and the charging of lands for charitable purposes. The will in question was in effect a devise of the lands themselves, and a gift of the produce of them, for as it contained a gift of the rents and profits the trustees could not have been compelled to sell, if they had paid the other charges uponit, but might have retained the estate; but even if only considered as a devise of the money, the residuary legatee might have elected to take the estate instead of the money. A charge on real estate for a charity being clearly void by the words of the act, it would have been absurd to hold that a testator should be able to give his whole real estate to be turned into money for the benefit of a charity (1).

Harrison v. Harrison, 1 Russ. that a legacy substituted by a codicil & Mylne, 71.

was exempted from the duty. Coo(9) Middleton v. Spicer, 1 Br. C.C. per v. Day, 3 Mer. 156. 201.

(1) Leacroft v. Maynard, i Ves. (h) Collison v. Pater and others, jun. 279; S: C. 3 Br. C. C. 233. Reg. lib. (A) 1830, fol. 1817–1819. (k) Mogg v. Hodges, 2 Ves. sen.

(i) Crowder v. Clowes, 2 Ves. jun. 52; Attorney General v. Lord Wey449. So where the duty on a le- mouth, Ambl. 20. SeeWaite v.Webb, gacy given by will was directed to 6 Madd. 71. be paid by the executors, it was held

Legacies to the poor of two parishes, to be paid out of monies to arise from the sale of estates devised to trustees upon trust to sell, were held to be void within the act (m).

So, where a testator being entitled to several sums of money, directed to be raised out of the produce of lands vested in trustees for sale, by his will directed his trustees and executors to convert all his property into ready money, and after payment of his debts, legacies, &c., to pay the residue to his wife. The wife having survived her husband, disposed of the residue of her personal estate after payment of her debts and legacies, “ to hospitals, schools and charitable institutions, for the benefit of society, 1001. each, as far as it would go.” The lands charged, were neither sold nor contracted to be sold, until after the death of the wife, when the sums were paid by the executors of the husband, who received them from the trustees for sale, to the executrix of the wife : Sir J. Leach, V.C., said, “The object of the stat. 9th George II. c. 36, as its title imports, was to prevent land becoming inalienable; but in order to secure that object, the Legislature thought it prudent, not only to prohibit gifts of lands to charitable uses, but to prohibit gifts to charitable uses of any interest in land; being aware, that by circuity and election, the land itself might be acquired in most cases, as the result of an interest in land. That money to arise from the sale of land is an interest in land, admits of no doubt ; and it is plain, therefore, that the husband could not by his will, have devoted these sums to charitable purposes; at the death of the wife these sums were not raised, and the interest in the land continued; and if her will is to carry those sums to charitable uses, it must of necessity pass to such uses, an interest in land; it can make no difference, that the wife had not the immediate personal right to call in these sums; she took the property in these sums, and the other personal estate of her husband, subject to his debts and the charges of his will, and the executors were but trustees for her; and the statute of mortmain must equally apply, whether the interest in land, which subsisted at the wife's death, was in her immediate personal demand, or that of her trustees”(n).

(1) Attorney General v. Lord Wey- (m) Page v. Leapingwell, 18 Ves. mouth, Ambl. 20.


The produce of real estate cannot be given to what, in contemplation of the English law, is for a charitable purpose, although that purpose is to be carried into execution in another country. Where a testator directed the income of a trust fund, arising from the produce of real estate, to be laid out as his trustees might think proper and direct for the advancement of learning, in any of the universities or public seminaries in Great Britain or Ireland, leaving the choice and distribution entirely to the discretion and good sense of his trustees; recommending to their consideration a plan he should leave for the maintaining of students at the King's

(n) Attorney General v. Harley, 5 Madd. 321.

College of Old Aberdeen, but without meaning to lay his trustees under any restraint in the exercise of their own judyment, farther than that the income of his estate be employed for the advancement of learning in these kingdoms.

By a codicil reciting the trust declared by the will, as to the residue of his estate, the testator directed, that the trustees should lay out and employ the trust monies from time to time in the purchase of freehold lands and tenements in Great Britain, or in the public funds, or in other proper securities in Great Britain at interest. The codicil then gave directions for application of the income of the trust fund in an establishment for students in the King's College of Old Aberdeen in North Britain, in a further payment not exceeding 801. per annum, to the general use of the college; and any surplus that might arise, to be employed by the trustees at their discretion, for the promoting of learning in any of the seminaries of Great Britain or Ireland. Sir W. Grant, M. R., said, “ It was clear that no charity in England, not within the exception of the statute, could have derived any benefit from the produce of the real estate. The question then is, whether such produce may be given for what, in contemplation of the English law, is for a charitable purpose, when that purpose is to be carried into execution in another country. The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated. The subject of this statute is real estate in England. The owners of such property are disabled from disposing of it to any charitable use, except by deed executed twelve months before the death of the owner, &c., to take effect from the execution. The words are perfectly general; ‘any charitable use whatsoever:' and the object could not be to treat English charities less favourably than charities to take effect for the benefit of other countries. It would be somewhat incongruous to refuse to permit such a disposition for the most laudable and meritorious charitable institution in England; but if the party chose to carry his benevolent intention beyond England, to permit him to do so, to the effect of disinheriting his heir in his last moments. The disinheriting

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