Imatges de pÓgina
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purpose; but, in the absence of an express declaration upon the subject, it will be inferred that it was the testator's intention that land should be bought by his trustees, and not that it should be supplied by others, in which case the gift will be void.

3. When a discretionary power to invest in lands or in the funds will support a gift, and when not.] Although a positive trust, directing money to be laid out in the purchase of lands for charitable uses is void, yet if there be sufficient room for the court to say that a discretionary power is given to the trustees to lay out the money either in the funds or in lands, the gift will be sustained; for where a testator has pointed out two modes, the one consistent with the statute, the other inconsistent with it, the court will adopt that which is legal and carry it into effect; but it is necessary in all these cases to see whether the testator has given such an option, and whether there is an ultimate object consistent with the statute or not (2).

Thus where a testator made his will, dated in 1738, in these words: “I will and desire that my executors, within twelve months after my decease, do settle and secure, by purchase of lands of inheritance, or otherwise as they shall be advised, out of my personal estate, one annuity or yearly payment of 501. to be paid yearly and distributed for ever by my executors, their heirs and assigns, among the poor and indigent people of Leeke, in the county of Stafford, in such manner as they shall think fit; and my will also is, that my executors do also settle and secure one other annuity of 5l. to be paid yearly to the vicar of Leeke, for the time being, for ever, for preaching an annual sermon on every 12th day of October.” Lord Hardwicke held, that the first words in the will came within the prohibition of the statute 9 Geo. II, c. 36, as the testator directed his executors “ to settle and assure, by purchase of lands of inheritance," &c., and if the testator had rested upon those words, his devise would have been clearly

(2) See Attorney General v. Whitchurch, 3 Ves. 144; Ambl. 212.

void ; but then he went on in the disjunctive,“ or otherwise, as my executors shall be advised ;" and if a devise in a will is in the disjunctive, and leaves to the executors two methods of doing a particular thing, the one lawful and the other

prohibited by law, the court will not, because one method is unlawful, hold the other to be so, but will give effect to the lawful mode, and hold the bequest to be good. In this case it was argued that the words “ for ever," in the bequest, showed that the annuities must arise out of some real estate, which was only capable of supplying them for ever, for personal funds were too perishable and transitory in their nature to answer such everlasting annuities; and that if a particular sum were vested in stock, with the design to purchase a particular yearly sum or annuity, it might so happen that the company might be quite dissolved, or that the stock might fall, or the interest be so reduced that half the annuity might not be produced; but the court overruled those objections, for if the company should be dissolved, the principal stock might be taken out and vested in some other company, and there might be annuities that might probably continue for ever, and yet not payable out of land, as in the instance of Sir Thomas White's (a) charity, which had lasted a century and a half; where there was a disposition of money to be employed, by continual rotation, in loans to poor tradesmen of several sums to be let out for a stated number of years, and then to be repaid ; and any man may at this day give, by will, a perpetual charity in this manner ; but if a man by will secures such loans by lands, or purchase of lands, his devise will be void, and contrary to the statute of mortmain. As to the annuity of 51. there were fewer objections to that than the other; for there was no direction at all for any money or personal estate to be laid out in land, for the executors were only directed to “secure and settle 51. a year," &c. which must be secured upon a personal fund, consistent with the testator's intention. The bequests were decreed to be

(a) City of Coventry v. Attorney P. C. 280; 7 Br. P. C. 236, Toml. General, 2 Vern. 397 ; S.C. Colles' ed., post.

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good, and the money to be invested in South-Sea Stock, for the charitable purposes mentioned in the will (6).

So, where a testator who left no real estate, devised 201. a-year to his brother for life, to be paid half-yearly, out of the interest money in the public funds, or mortgages, or any his real or personal estates of which he should stand invested; and gave the residue of his real and personal estates to his wife for life, and to dispose of at her death; and then directed the remainder of his estate after his wife's death, to be divided into 24 parts, 19 of which he disposed of; and by a codicil he directed the remaining 5 twenty-fourths, after the death of his wife and the payment of his debts and legacies, and the annuity of 201. a-year, after the death of his brother, to be applied in clothing and educating 20 poor boys, sons of parishioners of Brighthelmstone, in Sussex, in the principles of the Protestant religion, agreeably to the national and established Church of England, and in reading, writing, arithmetic, merchants’ accounts and navigation ; none to be admitted after eight or continued after 15. And his will was expressed to be, that the 5 twenty-fourths of his estate after his debts and legacies paid, together with the 201. a-year, after the death of his brother, or which should be deemed an equivalent to the 201. a-year, (5701. to be invested in some of the public funds, where there was a parliamentary security,) to stand in the names of the trustees, until the whole could be laid out in the purchase of lands, to the satisfaction of the governors and trustees, (whom he appointed,) which lands were directed to be purchased in the names of the trustees, to the uses aforesaid, viz., the interest, profits and rents of the 5 twenty-fourths of his estate, together with the interest, profits and rents of the said 5701., after the death of his brother, or the lands which should be purchased therewith, should be applied annually for ever, in clothing and educating 20 poor boys as aforesaid.

On a question whether the bequest in favour of the charity

(6) Sorresby v. Hollins, 9 Mod. 555-558, 8th ed. i Coll. Jur. 439. by Leach, 221; 2 Burn's Eccl. L.

was not void by the mortmain act, Lord Hardwiche said, he did not lay any weight on the directions to place the money in the funds in the first place, for that would be to make the validity of a will depend upon the order of the words. The direction is to place the money in the funds until laid out in lands to the satisfaction of the trustees. When can that be? Not while the statute of mortmain is in force. Suppose it had been, till by law it may be; such bequest would be good. These words must mean, when the trustees approve of laying it out: that cannot be while the statute of mortmain is in force; it would be to act contrary to the trust. Although the rule of construction as to the devise of money to be laid out in land, continued the same as before the statute, if the trustees would not act, the trust would devolve on the court, which would order the money to be placed in the funds, and not invested in lands, as was always done by Sir J. Jekyll, before the statute. An observation arose on the face of the will, as if the testator had thought the bequest might continue in government securities for ever, He directed the application of the interest, profits and rents of the 5 twenty-fourths, and of the 5701., or of the lands which should be purchased therewith; which being in the disjunctive, seemed to give an election. The words for ever, were applicable to both alternatives.” The bequest, therefore, was held valid (c).

The following words used by a testator, after giving the interest of a legacy for the benefit of preachers at a particular chapel :-“ As money is of more uncertain value than land, I do also give them (the trustees) power to make such purchase as they shall think best for perpetuating the gift;" were held not to bring the legacy within the mortmain act, the words not amounting to a direction to the trustees to purchase lands as the more permanent security, but conferring no further discretion than the selection of such an estate as would con

(c) Grimmett v. Grimmett, Ambl. others not exactly similar, 2 Cox, 210; S. C. 1 Dick. 251; 1 Coll. 301; 1 Ves. jun. 548. See also Jur. 454-457. It is said, that English v. Ord, Highmore on Mortthis case is not to be extended to main, 181, 2nd ed.

stitute an advantageous investment of the money, as the words seemed to relate to an event which had not happened (d).

Where a will gave the residue to be laid out in the purchase of lands, which was followed by the following clause“ In case my said intended charity cannot by the laws of the realm take effect in the manner as I have expressed myself, then I do hereby give the money arising by sale to the said trustees, upon trust, to dispose of the same for such charitable uses, intents and purposes, as shall be as near agreeable to the trusts, intents and purposes herein before expressed, as may be, and the laws of the land will admit;" it was held, that the clause was fraudulent and void, being inserted as a means to intimidate the heir-at-law and next of kin, and to prevent their opposing the charity (e). But it has been determined, that a condition is valid which looks forward to the possibility of the court deciding that the gift is unlaw

ful (f).

Negative words used by a testator, shewing his intention to be, that the money shall not be applied to purchase or keep in repair any real estate, but that the bequest was intended to form an auxiliary fund, to go in aid of other donations, on the supposition, that some other person will supply a house for the intended charity, will support the gift. As where a testator used the following words—“Whereas it is my wish that a blue coat school be erected at Oldham, and a blind asylum established at Manchester, under the management and direction of certain trustees, to be hereafter appointed; I hereby give and bequeath 20,0001. in trust, to the said trustees to each of the said charities, subject to such uses, limitations and conditions, as shall afterwards be determined for the government thereof;" if the will had stopped there the court held, that the bequest would have been void, but the subsequent words in the will were held to support it, but I direct that the said monies

(d) Attorney General v. Goddard, 2 Eden, 207, 214. Turn. & Russ. 348.

(f) De Themmines v. De Bonne(e) Attorney General v. Tyndall, val, 5 Russ. 92; ante, pp. 90 -- 92.

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