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of the lawful heirs by languishing or dying persons, which is treated by the statute as a mischief, cannot be less when the effect is to carry the property out of England.

“Therefore, neither the words of this statute, nor the presumable intention, warrant me in declaring that it is to be confined to charitable purposes, to be carried into execution in England. The statute not containing an exception in favour of the universities of Scotland as it does with regard to the universities of England; this must be considered as a charitable disposition, by which, nothing that is the produce of the testator's real estate can pass” (o).

SECTION IV.

Of Bequests of Money to be laid out in the Purchase or

Improvement of Real Estate for Charitable Uses. 1. Of Imperative Trusts to Invest in Lands. 2. How far a Testator's Intention may be Effected by

Hiring Land, or by a Gift from others, p. 178. 3. When a Discretionary Power to Invest in Lands or in

the Funds will Support the Gift, and when not, p. 182. 4. When Bequests to Improve Lands in Mortmain are

Valid, and when not, p. 188.

1. Of imperative trusts to invest in lands.] The statute 9 Geo. II. c. 36, s. 1, having expressly provided, that no money or other personal estate shall be given to be laid out in the purchase of lands for charitable uses, unless by deed inrolled as prescribed by that act (p); it follows as a necessary consequence, that all bequests of money for those purposes are void. The decisions upon this part of the subject

(0) Curtis v. Hutton, 14 Ves. 537. i Br. C. C. 271. See Campbell v. the Earl of Radnor, (p) See ante, pp. 118, 119.

turn principally upon what expressions amount to a positive trust to invest in the purchase of lands.

If the primary destination of the fund be the purchase of land, and no discretion be given to the trustees to invest it in any other mode, the gift will be void, as where a testatrix gave the sum of 6001. to be laid out in the purchase of freehold or copyhold lands as soon as could be after her decease; and until an eligible purchase could be made, she directed that the 6001. should be laid out at interest by the trustee, his executors, or administrators, whom the testatrix appointed trustees for the purpose of receiving and placing out the same for the most interest he could safely get, until a purchase could be made, and for making such purchase and upon further trust, that as 'soon as the trustee could meet with such freehold or copyhold lands suitable for the purpose, that he should purchase the same and convey it to the trustees of a chapel, and the interest of the money and rents of the lands were to be applied for the benefit of the preachers. Upon the question whether the gift could be sustained in respect that the fund might be laid out otherwise than in land, Lord Commissioner Eyre said, “ that the case of Grimmett v. Grimmett (9) which was cited, rested upon a critical comparison of words, the words in that case being such purchase as is to the satisfaction of the trustees.' If the question could be rested upon the similarity or synonymy of the two cases, it would be a fair argument; but I think, without saying whether I approve of that case or not, that this is substantially distinguishable, and upon the ground stated by Lord Hardwicke there; for he says, 'if it had been a disposition of money to be laid out in land, he should have been obliged to have said it was within the statute.' Now this is that very case, therefore the case cited will not apply, and it stands upon so much nicety, that it is not proper to extend it to cases in which every part of the circumstances of that case does not occur. This devise therefore is void within the statute of mortmain ” (r).

(9) Ambl. 210; post. pp.184–186. S. C. 1 Ves. jun. 548; 4 Br. C. C. (r) Grieces v. Case, 2 Cox, 301 ; 67; See post, sect. v.

So where a testatrix devised all her real estates to be sold, and directed part of the money to be laid out in the purchase of a competent piece of ground for erecting and building an almshouse in a particular parish, and the other part in the building, erecting, and furnishing the said almshouses. The testatrix willed, that the whole of the monies to be laid out in purchasing the ground and erecting such almshouses should not exceed 14001., and the residue of the money arising by such sale, and all other monies she should die possessed of, should be laid out in the purchase of lands in the names of trustees, in trust out of the rents and profits to pay certain weekly stipends to twenty poor persons whom she had appointed to live in the almshouses. The whole devise having been declared void except as to the personal estate, it had been ordered by Sir Thomas Clarke, M. R., that two years should be allowed the said trustees for procuring if they could, a gift of a piece of land whereon to build the almshouses according to the will. But Lord Northington reversed that decree, because building on a site was contrary to the act; secondly, because it was contrary to the intention of the testatrix, who intended her charity to be entire and not confounded with that of another, to make her go begging for ground (s). His Lordship subsequently explained (t), that the foundation of his opinion in that case was, that the testatrix directed the land to be bought, and therefore, that he should have been disappointing her intention if he had given liberty to erect an almshouse in case any body would have given the land.

Again; where a testator gave the residue of his personal estate “to be a perpetual endowment or maintenance for two schools mentioned in the will, and appointed two persons and the survivor of them, and the rectors for the time being in which the schools were, and their successors for ever, patrons of such schools," with certain directions as to their conduct, and afterwards proceeded in these words :—“And I recommend (u) that

(s) Attorney General v. Tyndall, 2 Eden, 207 ; S. C. Ambl. 614.

(1) Ambl. 555, 616.
(u) See ante, pp. 141, 142.

at a convenient time, my money shall be collected together and laid out in the purchase of a freehold messuage and tenement, or lands which are freehold, to be a perpetual endowment for the two schools by an equal portion to each of the schoolmasters in every year, after all incidental expenses are paid; provided and my will is, that my estate and effects so vested in trust, shall be suffered to accumulate until the annual proceeds shall amount to 1001. per annum, for each schoolmaster, and then the net annual proceeds shall be applied for the endowment of the said two schools as aforesaid.” The next of kin of the testator filed a bill to obtain a declaration by the court, that the bequest was void, and for an account and distribution ; Chief Baron Richards said, the whole question arises upon the construction of the words of the second clause of the will, depending on whether they are mandatory upon the trustees, so that they must in all events lay out the money given in the land, or whether they may not so lay it out, if they should not think it advisable. If they are obliged so to lay out the money, the bequest would be void certainly; if on the other hand an option has been given to the executors, it is hardly necessary to say that they may legally give effect to the bequest. The Chief Baron held, that the will did not contain any express words giving a discretion to the trustees, and therefore that the bequest of the residue was void, and belonged to the next of kin of the testator (v).

A bequest of money to the Corporation of Queen Anne's Bounty was held void, because they are bound by their rules to lay out the money in land; and though the crown has power to make new rules, the gift could not be supported, because it must be regulated by the rules existing at the time of the testator's death (w). For the same reason a bequest to the society for increasing “clergymen's livings in England and Wales, for the perpetual purpose of increasing their livings," was declared void, there being no other society answering that description but that of the governors of Queen Anne's Bounty (x). .

(m) Kirkbank v. Hudson, 7 Price, 13 n.; but such a bequest would 212; S. C. i Dan. 259.

now be good. See 43 Geo. III. c. (w) Widmore v. Woodroffe, Ambl. 107; ante, pp. 51, 52. 636; S. C. Dick. 392; 1 Br. C.C.

The intention of a testator to give to his trustees power to lay out the residue of his personal estate in the purchase of lands either in Scotland or England, for a charity, may be good; and it is perfectly clear that it is not necessary that the testator should express in positive and distinct terms, that the trustees were to have such option. If it can be collected from any part of the will, that the testator meant or contemplated that his trustees should have an option of buying lands and rents of inheritance either in Scotland or in England, such intention will be carried into effect. But where a Scotchman by a will in the English form made in England, gave the residue of his personal estate to trustees, of whom some, but not all, were resident in Scotland, upon trust to lay out the same in the purchase of lands or rents of inheritance in fee simple for the charitable purposes expressed in an instrument of even date with his will; and by such instrument, he directed the trustees of his will to pay the rents annually to certain other trustees, who at all times were to be persons residing within twenty miles of Montrose, to be by them applied to the relief of indigent ladies in Montrose, or within twenty miles of that town; it was held, that the bequest was void under the mortmain act, as there was not enough in the will taken altogether to show that the testator contemplated the purchase of lands in Scotland (y). On appeal to the House of Lords, Lord Lyndhurst said “ the question was, whether there was an option given in the will to purchase real property in Scotland? Had it appeared in distinct terms, or by clear implication upon the face of the will, that the trustees were to lay out the money in the purchase of real estate in England or Scotland, as they might think fit; there would have been no objection to the bequest; but upon the best consideration of the will and the argument, he could see nothing to lead him satisfactorily to the conclusion, that the testator contem(2) Middleton v. Clitherow, 3 Ves. (y) Attorney General v. Mill, 3

Russ. 328.

734.

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